THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 
LOS  AXGELES 

SCHOOL  OI    LAW 


J 


\ 


AX   ELEMENTART   TREATISE 


AMERICAN    LAW 


EEAL   PB0PEKT2 


T 


CHRISTOPHEB  G.  TEEDEMAN,  A.M..  LL.B., 

Professor  of  Laic  and  Instnt<-i<->r  in  the  I  Law  Department 

of  the  Umtventt  uri. 


ST.  LOUIS 

F.  H.  THOMAS  LAW  BOOK  CO. 

1885. 


T 
T44^c 


Entered  .'n rdlng  to    \  ,  llir  ymr    * 

I  [IDEM  \S. 

In  the  <  Mii.o  of  the  Libra  •  .ngton. 


St,    Louis,   Mo 
Press  of  STu\mJonts  I'rintiuij  Co. 


? 

*+ 
•* 


TO  THE 
HONORABLE   PHILEMON    BLISS,   LL.D., 

Bx-JUDGI     01       1 111:     SUFBEMI     COUM     01     'mi      STATK   OF 

MlSSOUBl,    wi>    I>i\n    OF    mi:    La*     1  M.r  ai;  i  mi.m  OT  TBI 
Uxn  EB8ITY    "i     Ml— "i  i;i  : 

To  your  earned  sympathy  and  encouragement  may  i 
il  degree  he  ascribed  whatever  Buccess  attends  the 
present  effort;  and  in  submitting  its  results  to  the  judgment 
of  the  profession,  I  gladly  seize  the  opportunity,  which  i- 
afforded  me  in  dedicating  this  volume  t<>  ynu.  t<>  Lriv<- r\- 
pression  to  my  admiration  of  your  many  resplendent  quali- 
ties of  mind  and  heart,  of  your  professional  zeal  and 
attainments,  and  my  gratitude  for  your  personal  friendship 
and  interest  in  my  work. 


(3) 


. 


I '  R  E  F  A  <  '  !•: 


Iii  presenting  to  the  profession  a  new  work  on  the  Amer- 
ican Law  of  Real  Property,  the  author  does  no(  deem  an 
apology  necessary,  although  it  may  bo  appropriate  to  -tat< 
briefly  his  objed  and  the  sco] t"  the  work.  The  experi- 
ence of  the  author,  both  as  a  studenl  and  as  an  instructor 
in  this  branch  of  the  law,  has  led  him  t.>  believe  thai  stu- 
dents of  the  law  generally  look  upon  the  law  of  Seal  Prop- 
erty as  extremely  technical,  arbitrary  and  unreasonable. 
Believing  that  all  law  is  founded  upon  reason,  and  isdevel- 
oped  by  forces,  which  arc  no!  produced  <>r  even  controlled 
by  the  arbitrary  will  of  the  legislator,  and  feeling  confident 
that  a  logical  or  historical  reason  could  be  found  for  every 
principle  of  the  law  of  Real  Property,  the  author  has  made 
that  subject  the  object  of  his  special  study,Nand  this  volume 
i-  given  to  the  profession  as  tin-  result  of  his  investigations, 
with  the  hope  that  it  might  aid  in  stripping  this  1> ranch  of 
the  law  of  its  harsh  and  uninviting  dress. 

In  one  sense,  this  book  cannot  be  considered  exhaustive, 
for  volumes  can  be  written  on  the  subject  without  exhaust- 
ing it.  But  it  is  thought  that,  in  another  sense,  the  book 
may  be  considered  as  reasonably  exhaustive,  in  that  it  con- 
tains the  enunciation  of  all  those  principles  which  are  nec- 
essary to  a  broad  and  comprehensive   knowledge  of  the 

(v) 


VI  PKEF  \'  I.. 

subject,     [nstead  of  filling  these  pages  with  nun  cita- 

tions of  the  facts  of  particular  cases,  and  leaving  to  the 
-indent  the  discovery  of  the  general  principles,  which  un- 
derlie the  cases,  these  principles  are  presented  in  :l  logical 
rind  systematic  order,  with  a  statement  of  the  rational  or 
historical  source  of  each,  while  copious  refer<  M<-<1 

cases  and  standard  treatises  will  enable  the  student  ti»  ptu 
his  investigations  into  all  the  ramifical  the  subji 

It  i-  hoped  thai  this  plan  of  treatment  will  give  rork 

:i  peculiar  value  as  a  text-book  for  students,  while  it  will 
furnish  to  practitioners  a  book  <>t'  ready  referent 

Free  use  has  been  made  of  the  researches  of  othi 
and  references  to  their  works  will  be  Found  on  almost  ev< 
page  ;  but  the  author  considers  it  necessary  to  make  i  special 
acknowledgment  of  hi-  indebtedness  to  the  treat  M   . 

Williams  and  Professor  Washburn  for  the  valuable  assist- 
ance which  he  h:i<  derived  from  them. 

1 11  commending  this  \\  ork  to  th< 
of  .-in  enlightened  profession,  the  authi  -  that  it  will 

jiot  be  adjudged  to  be  w  ithout  merit . 

C.G.  I  . 

rjNivKRsrn  oj  rai  Stati  oi  Missouri,  La*  D  h  r, 

November  1st, 


TABLE    OF    CONTENTS. 


CHAPTEB    I. 

ki  m    PbOPI  kty. 

CHAPTEB    II. 
Tin    Prim  m-i  i  -  oi    in  Vfcusuu 

CHAPTEB     in. 

Estati:-  in   Fir.  simple. 

CHAPTEB     IV. 

Estatk<  Tui.. 

CHAPTER     V. 
Estates  for  Lot 

CHAPTER    VI. 
Estates  Arising  out  ok  thk  Marital  Relation. 

Section  I. — Estate  of  Husbaud  during  Coverture. 
II.  —  Curtesy. 
III.  —  Dower. 
IT.  —  Homestead. 


(vli) 


VUI  TABLE    OF  IS. 

CHAFTEB    vii. 

ITE8    I.i  98  THU  >LD. 

Section  I.—  :  r  v.  ir>. 

II.  —  Estates  at  Will,  and  from  'i  ir. 

III.      I.- 

i  ii  a  r  i  i.  R    viii. 
.i"i\  i  -i 

PIOM    I.  —  i 

l .  Joint-  i 
. 

■  rj . 
i.  i 

-  in  Partni  rshlp. 
nos  n. — Incidents  Common  to  all  Joint 
EL— Partition. 

(  ii  a  r  ri  i;    ix. 
Estates  dpos  Comtoxxoh  un>  Limitation,  lkd  Conditiohax.  ..imita- 

CHAFTEB    X. 

MOBI G  \ 

Section  I. — Nature  and  Classification  of  M 

II. — The  Bights  and  Liabini    a  ^igeea. 

HI.  —  Bemedles  and  Remedial  Rights  Incident  to  ■  Mortgage. 

CHAPTER     XI. 
Reversions 


TABLE  OP  CONTENTS.  IX 

CH  a  i"i  ;   i:    \ii. 

Ri  \i  UNDKR8. 

B I.  —  Of  Remainders  In  general,  and  herein  of  ..tin 

den. 
II.  —  Contingent  R  mainders. 
III.  —  Estates  within  the  Rnle  In  Bhelli 

CHAPTER     XIII. 

[JSJBS    LOT)  Tim  - 1  9. 

Section  I. —  (Jaea  befon  Statute  of  i 

II.  —  dees  under  the  Stal  ite  of  i 
HI.— Contingent,  Springing  and  Shifting  i 

IV.  —  Tn. 

CHAPTER    XIV. 
Exbcxttort  Devises. 

CHAPTER     XV. 
Powers. 

CHAPTER     XVT. 

Incorporeal  Hereditaments. 

Section  I.  —  Rights  of  Common. 
II.  —  Easements. 
HI.  —  Franchises. 
IV.  —  Rents. 

CHAPTER    XVn. 
Licenses. 


TABLE    OF    CONTESTS. 
CHAPTEB     XVIII. 

(il   NJKAI.    '    I    \-~ll  K    M  KW    Ot    Tl  i 

(    II   \  PT  I.  B     XIX. 
Tm  i.   Bl    Dssi  in  i  • 

CHAPTEB     XX. 
Tm  i    l-v  I  teiani  u    \'  ■:'  1-11  ion 

Section  I.— Title  bj  Occupancy. 

II.  —  Titi. 
III.  — Title  bj  Adn  I'-'    Poast  BSl  •!»■ 

i\'     -The  Statute  of  Limltati 
V.  —  Estoppel. 
VI.—  Abandonment. 

CHAPTEB     wi 

Til  1   I       Bl      I  iBAV  1 

Section  I.—  Tille  by  Public  Gtmnt. 

Q._Title  bj  involuntary  Alienation. 
HI. —  Title  bj  Private  (.rant. 

CHAPVEB    wn. 
Deeds,  nun:  Requisites  un>  Compoheot  Parts, 

Section  I.  — The  Requisites  of  a  Deed. 

II,  —  The  Component  Parts  of  i  Deed. 

III.  — Covenant-   in    l>*  I 

CHAPTEB    XXIII. 

Tni.i     Bl    DEVISI  . 


TABLE  OF  CASES  CITED. 


ft)**.] 


A. 

Abbott  r.  Abbott 

Abbott    .  B 

Abbott  r.  1 . 

Abbott  c.  Bradstreet,  401. 

Abbott  r.  Oodft 

Abbott 

Abbott  p.  Liodenbower,  760. 

Abbott  v.  Stewartstown,  I 

Abbey  ».  Bill  up-. 

Abeel  t>.  Rudcliff,  507. 

Abercrombie  p.  Baldwin,  264 

Abercrom1.  th,  192. 

Abercrombie  r.  Riddi 

Abraham  p.  Twigg,  548. 

Abraham  v.  Williams, 

Academy  of  M  isic    .  llukett,  193. 

Accidental  Death  Ins.  Co.  v.  McKen- 

zie,  199. 
Ackland  r.  Lutley,  494. 
Aeklessp.  Leekright, 
Acroyd  r.  Smith,  499. 
Acton  v.  Blundell,  615. 
Adair «.  Loth.  101,  106. 
Adams  v.  Adams,  506,  508,   510,  434, 

462. 
Adams  r.  Bass,   885. 
Adams  v.  Brown,  353. 
Adams  v.  Buchannan,  292,  294. 
Adams  r.  Bucklin,  544,  646. 
Adams  v.  Butts,  115. 
Adams  r.  Corriston,  851,  822. 
Adams  v.  Cuddy,  817. 
Adams  r.  Cowherd,  295. 
Adams  ».  Essex,  358. 
Adams  v.  Frothingham.  687. 


Adam 

I 
Adami 

Adam-        Pall    •  r.   1  .7 

'. 

Adam- 
Adami 

Adam  «03. 

Adams  v.  Stevens,  30::. 
us  r.  Truman,  66 l. 
Addis 
Adsit    .  i48. 

.  West  ott,  ~i~ . 
Mtaa  I:  -.  I  o.    .  Tyler,  -  ■'■     B7. 
Age 

Agricultural  Bank  p.  Rice,  794. 
Agricultural  Ass'n  v.  Brewster,  500. 
Aiken  v.  Bruen,  371. 
Aiken  r.  Gale,  371. 
Aiken  v.  Smith,  179,  494,  513,  201. 
Aikin  v.  Albany  R.  R.,  190. 
Aikin  r.  Weckerley,  881. 
Alabama  Conf.  v.  Price,  883. 
Albany  Fire  Ins.  Co.  r.  Bay,  794. 
Albany  Street,  In  re  751. 
Albriton  v.  Bird,  663. 
Adderman  v.  Neater,  179. 
Alderson  v.  Miller,  199. 
Aldred's  Case,  622. 
Aldrich  v.  Martin,  241. 
AUrich  r.  Parsons,  2. 
Aldridger.  Dunn,  292. 

(xi) 


XII 


TABLE    OF    I    \-l>    CI  fED. 


Alezande    v.  Alexan  "       "J. 

Alexander  p.  Fisher,  7  I,  116. 
.'.  lexander  p.  Kenne  !. 

Alexander  v.  Lively, 

Alexai  der  p.  I'  714. 

Alexander*.  Pol 
Uexander    .  .  701. 

Alexai 

Alexander  p.  W 
Alexander's  Will, 
Allen  o.  Allen,  61. 
Allen  - .  A 

Allen    P.    |;  : 

192. 

Allen  ■ .  I  -,  71. 

All.-,,        I 

.  I 

Allen 
Allen 

Allen  I     ' 
Allen  ,-.  Bendt  - 

Allen        II 

A         p.  Bolton,  - 

Allen  o.  II 

Allen  o.  Jai  214 

Allen  r.  LfttbrO]  , 

p.  Little,  881. 

Allen  o.l  .  I0L 

Allen      .    P 

A 

A  J,  B42, 

,-.  Taft,  841. 
Allen  r.  Tr 

Allen  p.  Van  Bouton, 
Alley  c.  Lawrence,  t 
Allia  r.  bfoore,  718. 
Allison  v.  Allisoi  . 
Allison  r.  '-. 
Allison  p.  Wilson,  661 . 
Allyn  0.  Mather.  117.  U& 
A.mv  p.  Hunt.  v 

Alspaugh's  Will,  877. 
Altham  p.  \  .  1 1  .. 

Althorf  v.  Wol$  79, 
Alton  p.  Pickering  218. 


.  4. 
Aiwa 

1 

\ 

.  888. 

- 

.  : 
\ 

I  '36. 

A 

And* 

1 1. 
Andre 

">4i,  567. 
78, 

And 

.  Bparhav 

Andrew-;  p.  Spur:. 

And 

Andn-A 

Angell  r.  Roeanbury,  604. 


TABLE   Ol  111!'. 


Mil 


Angler  ,-.  Bchieffelin,  810. 

.  v.  Church  ''■  216. 

Annan  o.  Baker,  760. 
Annan  v.  Folaom,  810. 
Annablo  v.  Patch, 
Anson       v 
Anthony  ».  Anthony,  307 

■  it v  v.  Giflford,  • 
Anthony  v. 

Anthony  d.  Lapham,  81  f 
Anthony  9.  B 
Anthony  r.  Smith,  294. 
Anton]  o.  Belknap,  2,  6. 
Apple  d.  Apple,  116,  388. 
Applegate  794 

Applegate       M  886« 

Applegate  o.  Bmith,  873. 
Appleton  v.  B 
Appleton  o.  Rowley,  105. 

l.-chne  v .  Bowes,  352. 
Archer  r.  Jone- 
Archer's  (  121,  122. 

ArJesco  Oil  C  -.    •  N-  A.  -Mining  Co., 

Ardsr.  Watkins, 
Arkwright  v.  Gill,  616. 
Armington  r.  Armington,  671. 
Armitage  r.  Wickliffe,  333. 
Armstrong  v.   Armstrong,    542,  544, 

876. 
Armstrong  v.  Moran,  885. 
Armstrong  v.  Morrell,  510. 
Armstrong  r.  Kent,  588. 
Armstrong  v.  Kistcau,  694,  714. 
Armstrong  v.  Wheeler,  182. 
Armstrong  v.  "Wilson,  101. 
Arnold  v.  Arnold,  116,  388. 
Arnold  v.  Brown,  47. 
Arnolds.  Congreve,  544. 
Arnold  v.  Den,  671. 
Arnold  v.  Ellmore,  833. 
Arnold  v.  Gilbert,  513. 
Arnold  v.  Mattison,  307. 
Arnold  v.    Kichmond    Iron   Works, 

792. 
Arnold  v.  Stevens,  605. 
Arnold  v.  Wainright,  252,  253. 
Arnot  v.  Post,  333. 


Arring 
Arthur    ,  W 

Art/.     .  -"7. 

Ashfa  ■ 

I  ..  281. 

\ 

\ 

kworth, 

r.  II..-. ;.   I 

!  10 

Astrom  p.  II 

366. 

Atki  i.- 
Atkins  v.  Rinnan,  758. 
Atkins  r.  Merrill,  1 16. 
Atkins  v.  Sawyer,  318. 
Atkins  t\  Yeomans,  141,  142. 
Atkinson  v.  Baker,  61. 
Atlantic  Dock  Co.  v.    Leavitt,   332, 

808. 
Attaquin  v.  Fish,  81. 
Attersol  r.  Stevens,  78,  400. 
Attorney-General  v.  Chambers,  687. 
Attorney-General  v.  Gill,  542. 
Attorney-General  v.  Hall,  398,  546. 
Attorney-General  v.  Jolly,  884. 
Attorney-General  v.  Merrimack  Co., 

281,  726. 
Attorney-General  v.  Proprietors,  etc., 

37,  504,  462,  467,  504. 
Attorney-General  v.  Purmort,  312. 
Attorney-General  v.  Scott,  464. 
Attorney -General  v.  Trinity  Church, 

884. 
Attorney-General  r.  Winsdore,   499. 
Attorney-General  v.  Wietanley,  362. 
Atwater  r.  Atwater,  275. 
Atwood  r.  Vincent,  292. 
Atwater  v.  Bodfish,  598,  622. 
Atwood  v.  Atwood,  121,  139,  145. 
Aubin  t?.  Dalev,  116. 


XIV 


TABLE    OF    CASES    CITED 


Aufricht  v.  Northrop,  332. 
Augustus  v.  Seabolt,  396,  663. 
Auriol  v.  Mills,  186. 
Austin  v.  Taylor,  495. 
Austin  v.  Austin,  311,  312. 
Austin  v.  Burbank,  330,  336. 
Austin  v.  Cambridgeport  Parish,  272, 

273,  277,  880. 
Austin  v.  Downer,  305. 
Austin  v.  Hall,  240. 
Austin  v.  Halsoy,    294. 
Austin  v.  Hudson  River  R.  R.  Co.,  78, 

255,  400,  618. 
Austin  v.  Rutland  R.  R.  Co.,  714. 
Austin  v.  Sawyer,  2,  799. 
Austin  v.  Shaw,  798. 
Austin  v.  Stanley,  161. 
Austin  v.  Stevens,  65,  77. 
Austin  v.  Swank,  163. 
Austin  v.  Taylor,  495. 
Avelyn  v.  Ward,  277,  539. 
Averett  v.  Ward,  359. 
Averill  v.  Guthrie,  841. 
Averill  o.  Taylor,  179,  334. 
Avery  v.  Chappell,  883. 
Avery  v.  Judd,  822,  826. 
Avon  Co.  v.  Pixley,  876. 
Avon  Co.  v.  Andrews,  84-. 
Ayer  v.  Aver,  493,  635. 
Ayer  r.  Emery,  272,  863. 
Aymar  v.  Bill,  329. 
Ayray's  Case,  7'.»s. 
Ayres  v.  Falkland,  385. 
Ayres  v.  Husted,  376. 
Ayres  v.  Waite,  826. 
Austin  v.  M.  E.  Church,  461. 


B 


Babb  v.  Parley,  163. 
Babbitt  v.  Scroggins,  246. 
Babcock  v.  Bowman,  792. 
Babeo<  k  o.  Eoey,   IG3. 
Babcoek  r.  Kennedy,  824. 
Babcock  ».  Lisk,  810. 
Babcoek  v.  Scovill,  182. 
Babcock  a.  Utter,  TOO. 
Babco*  k  r.  Wyman,  807. 
Backeri8toss  i>.  litohler,  2. 


Backhouse  v.  Bonomi,  618. 
Bacon  v.  Bowdoin,  179,  334. 
Bacon  v.  Brown,  306,  310. 
Bacon  v.  Cottrell,  355. 
Bacon  v.  Huntington,  279. 
Bacon  v.  Mclntire,  326. 
Bacon  v.  Taylor,  782. 
Badger  v.  Hardin.  "> 4 2 . 
Badger  v.  Lloyd,  512. 
Badgett  v.  Keating,  494,  512. 
Badgley  v.  Bruce,  138. 
Badlam  v.  Tucker,  274. 
Bagley  v.  Freeman,  182. 
Bagley  v.  Morrill,  839. 
Bagnell  v.  Broderick,  744. 
Bailey  v.  Carleton,  695,  696. 
Bailey  v.  Bailey,  307,  509. 
Bailey  r.  Delaplaine,  198. 
Bailey  c.  Doolittle,  761. 

.-.  Gould,  329. 
Bailey  v.  Hastings,  702. 
Bailey  v.  Merritt. 
Bailey  r.  Moore.  1     I. 
Bailey  v.  Myrick,  325,  353,  371. 
Bailey  v.  Richardson,  321. 
Bailey  o.  Smith. 
Bailey  v.  Wells,  186,  197,  198. 
Bailey  p.  White. 
Bain  r.  Clark,  191. 
Bainbridge  r.  Owen.  325. 
Baine  r.  Williams,  376. 
Baird  v.  Rowan,  6 
Baker  v.  Baker,  115,  139,  500. 
Baker  v.  Bliss,  802. 
Baker  D.  Bridge,  37. 
Baker  v.  Bishop,  312 
Baker  v.  Crosby,  609. 
Baker  r.  Dening,  807. 
Baker  v.  Flood, 
Baker  v.  Gostling,  192, 
Baker  r.  Haskell,  812. 
Baker  ,-.  Jordan,  2,  812. 
Baker  o.  Kane,  741. 
Bnker  v.  Matcher.  817. 
Baker  v.  Pratt,  198. 
Baker  v.  Red,  t 
Baker  p.  Scott,  86  ;.    I 
Baker  o.  Terrell,  880;  870. 


TU'.LE   OF    CASKS    CITED. 


Baker  v.  Thrasher,  306. 

Baker?;.  Vining,  500. 

Baker  v.  Wind,  303. 

Baldwin  v.  Allison,  601. 

Baldwin  V.Baldwin,  882. 

Baldwin  v.  Brown,  720. 

Baldwin  v.  Humphries,  500,  507 

Baldwin  v.  Jenkins,  303,  318. 

Baldwin  v.  Maultsby,  813. 

Baldwin  v.  Porter,  310. 

Baldwin  v.  Tuttle,  802. 

Baldwin  v.  Walker,  190,  324,  386. 

Balle.  Cullimore,  212. 

Ball  v.  Deas,  237. 

Ball  v.  Dunsterville,  805,  807. 

Ball  v.  McCrawley,  816. 

Ball  v.  Wyeth,  310. 

Ballard  v.  Ballard,  402. 

Ballard  v.  Ballardvale,  318. 

Ballard  v.  Briggs,  801. 

Ballard  v.  Dyson,  608. 

Ballentine  v.  Ponner,  74,  116 

Balliet's  Appeal,  889. 

Balstead  v.  Porter,  558. 

Baltimore  v.  White,  819. 

Bancroft  v.  Consen,  501. 

Bancroft  v.  Ives,  663,  888. 

Bancrofts.  Wardwell,  216. 

Bancroft  v.  White,  122. 

Bangan  v.  Mann,  725. 

Bank  v.  Anderson,  340. 

Bank  v.  Eastman,  741. 

Bank  v.  Owens,  117,  120. 

Bank  v.  Rose,  335. 

Bank  v.  Wilks,  513. 

Bank  of  Augusta  v.  Earle,  633. 

Bank  of  England  v.  Tarleton,  330. 

Bank  of  Montgomery  County  Appeal, 
342. 

Bank  of  Mt.  Pleasant  v.  Sprigg,  310. 

Bank  of  Penn.  v.  Wise,  192. 

Bank  of  South  Carolina  v.  Campbell, 
372. 

Bank  of  South  Carolina  v.  Mitchell, 
376. 

Bank  of  State  of  Indiana  v.  Ander- 
son, 330. 

Bank  of  United  States  v.  Cavert,  330. 


Bank  of  United  States  v.  Dunseth,  143. 
Bank  of  United  States  v.  Housman, 

443,  777. 
Bank  of  Washington  v.  Hupp,  324. 
Bank  of  Westminster  v.  Whyte,  312, 

307. 
Banks  v.  Am.  Tract  Sue,  G13. 
Bankj  v.  Anderson,  829. 
Banks  v.  Ogden,  I 
Banks  v.  Sutton,  682. 
Bantling  v.  Bradford,  361. 
Banning  v.  Edes,  812. 
Barber  v.  Harris.  240.  251. 
Barger  o.  .Miller,  805. 
Barker  o.  Barker,  507. 
Barker  v.  Bell,  339,  318,  335,  725,  890. 
Barkers.  Blake,  139,  110. 
Barker  v.  Dayton,  103. 
Barker  v.  Flood,  321. 
Barker  v.  Greenwood,  462,  504. 
Barker  v.  Salmon,  739. 
Barker  v.  Wood,  352. 
Barker's  Appeal,  875. 
Barksdale  v.  Elam,  273. 
Barlow  v.  McKinley,  853. 
Barlow  v.  St.  Nicholas  Bank,  853. 
Barlow  v.  Wainwright,  174,  218. 
Barnard  v.  Edwards,  131. 
Barnard  v.  Jernison,  325,  353,  355. 
Barnard  v.  Poor,  79. 
Barnard  v.  Pope,  2o4. 
Barnard's  Heirs  v.  Ashley's  Heirs,  747. 
Barnes  v.  Add}',  501. 
Barnes  v.  Barnes,  652. 
Barnes  v.  Gay,  117,  120,  124. 
Barnes  v.  Irwin,  565,  568. 
Barnes  v.  Lee,  319. 
Barnes  v.  McKay,  726. 
Barnes  v.  Lyester,  877. 
Barnes  v.  Taylor,  507. 
Barnet  v.  Bamber,  501. 
Barnett  v.  Nelson,  351. 
Barney  v.  Frowner,  135,  140. 
Barney  v.  Keokuk,  83-5. 
Barney  v.  Leeds,  160,  161. 
Barney  v.  McCarthy,  816. 
Barney  r.  Miller,  829. 
Barnev  c.  M\lts,  371. 


XVI 


TABLE    • 


Barr  v.  Buttin,  E 

Barr  v.  Galloway,  lOO. 

Barr  v.  Grate,  I 

Barrell  v.  J  .  517. 

Barret*.  Shaubhut, 

Barr  01. 

Barrett  v.  I  >oughert} .  ">00. 

Barretl  <■.  French,  776. 

I .  -,  686 

Barn 

Bam  88. 

Barroilket    , 

Barron  v.  B 

Barron  7-.  Marti  I  . 

Barmso  v.  Madam,  - 

Bartholome 

Bartlett  o.  Bar! 
Bartlett  v.  Di  i 

Bar! 

Bartlett  o.  King, 

Bartl(  ■•    .Pei 

Bartlett  r.  : 

Barton 

Barwick  <-.  Miller,  874. 

Basco 

Bascom  21. 

ord  -.  Pea  H,i. 

Baskin  o.  Baskin,  ^77. 

Basa  ■.  Scott, 

BaSS 

Bassett  o.  Ba  B01. 

Bassett  ».  Brown,  T 

Bassett  r.  Mason,  862. 

Batchelder  p.  Dean,  178. 

Batohelder  ».  Sturgis, 

B  itohelder  ».  Wakeflt  Ld, 

r.  iteman  o.  Bateman, 

Bates  r.  Bates,  116,  I  S9,  B81. 

Bates  •■.  B.  &  N.   Y.  Central  R.  K.. 

Bates  t>.  Surd,  ■~'|>7. 
Bates  v.  Miller, 
Bates  i'.  Nororosa,  I 
Bates  v.  Ruddick,  871, 


I 

06. 

! 

I 

12,  800l 

i 

611. 

.  M 

i 

.  p.  Dickers 

.  \ 
5 

■ 

71. 

Lnox,  1 1">. 

: 


TABLE    <>l     CASEfc     CITED. 


xvn 


Beardsley  v.  Tuttell,  I 

Beaslev  p.  Bhaw, 

Beaston  v.  Weate,  6 16. 

Beatiov.  Butler, 

Beatty  r.  Gregory,  I 

Beatty  v.  Maaon, 

Beatty  v.  Harkey, 

Beaumont  r.  Kime,  890. 

Beaapland  v.  McKeen,  726. 

Beaver  v.  Filaon,  884. 

Beavers  t\  Smith,  L20,  1  18, 

Beck  r.  M 

Bet  k'a  Ex'ra  -.  Graybill,  600. 

Becker  v.  Van  Valkenburgh,  715. 

Becktnan  «.  Saratoga,  etc.,  It.  I: 

Bedell's  Case,  776. 

Bedford  i».  Kelly,   199. 

Bedford  r.  McElberran,  200. 

Bedford  v.  Terhune,  182,  108,  21.r,. 

Becker  v.  Baldy,  161. 

Beekman  v.  Bonsor,  88  ! 

r.eekman  v.  Frost,  352. 

Beers  v.  Beers,  78. 

Beers  v.  St.  John,  7,  77. 

Begbie  v.  Crook,  501. 

Belden  v.  Carter,  814. 

Belden  v.  Meeker,  340. 

Belden  v.  Manly,  330,  332. 

Belk  v.  Massey,  816. 

BelU.  Ellis,  216. 

Bell  v.  Fleming,  340,  342,  310. 

Bell  v.  Gillespie,  542. 

Bell  v.  Mayor  of  New  York,  6G,  143, 

332,  334,  325,  357,  859,  373. 
Bell  v.  Morse,  329. 
Bell  v.  Nealy,  128. 
Bell  v.  Ohio  &  Penn.  R.  R.,  593. 
Bell  v.  Schrock,  360. 
Bell  v.  Thomas,  339. 
Bell  v.  Twilight,  817. 
Bell  v.  Woodward,  321. 
Bellamy  v.  Bellamy,  501. 
Bellamy  v.  Brickenden,  326 
Bellock  v.  Rogers,  358. 
Belmont  v.  Coman,  332. 
Belmont  v.  O'Brien,  326. 
Beloe  v.  Rogers,  359. 
Belton  v.  Avery,  305. 


Bemii  0.  Wilder,  191. 
B        v,  r.  Townaend,  500. 
Benedict  0.  Biorae, 
I 

Benbam  --.  I: 
Benje  -•.  <  hreagh,  I 
Benner  >■.  Erana,  1 1 1. 

Bennett  r.  Hullo. k,  2.'.5,  700. 
tt  v.  "Williams,  609,  7 
Bennett  v.  Austin,  601. 

Bennett  9.  Bullock,  700. 

1 
bild,  246,  246. 

Bennett  v.  I  ''97. 

105. 
Bennett  0.  Holt,  806. 
Bennett  0,  1 1 
■ 
Bennett  r.  Robinson,  2 
Bennett  >:  I 

Bennotk  r.  Whipple,  213,  304. 
Bensley  v.  At  will,  Bl  L 
Bentr.  St.  Vrain,  674. 
Bentham  v.  Smit! 
Bentley  r.  Long,  401. 
Bentley  v.  Bill,  1 
Bentley  v,  "VVhittlemore,  336. 
Benson  v.  Bolles,  182. 
Berg  v.  Anderson,  538,  542. 
Berg  v.  Shipley,  819. 
Bergen  p.  Bennett,  363,  365,  559,  563, 

566,  805. 
Bergerv.  Duff,  511,  566. 
Berkshire  M.  F.  Ins.  Co.  v.  Stingis, 

813. 
Berly  v.  Taylor,  506. 
Berridge  v.  Ward,  837. 
Berrien  v.  Berrien,  517. 
Berrien  v.  McLane,  509. 
Berry  v.  Anderson,  812. 
Berry  v.  Billings,  844. 
Berry  v.  Mutual  Ins.  Co.,  290. 
Berry  v.  Snyder,  835. 
Berry  v.  Skinner,  363. 
Berr}r   v.  Williamson,  495,  505,  434, 
Bertie  v.  Abingdon,  46. 
Bertie  v.  Falkland,  275. 


XV111 


TABLE 


I  -1  o.  Hu     ' 

I 
Bethlehem  p.  Ani  11,  312. 

Betsey  v.  Torrance,  796. 
Bettison  v.  Bu  I  I. 

He<  bn< 
I ;         v  r.  Burke,  702. 
Bihhj 
Bickett  r.  M 

Bidd 
Bidleman       I 

.v  ,-.  Bush, 

Bigelow  r.  J 
B      low  p.  To] 
Bigelow  p. 

Bigler  p.  Waller,      I 
Billinga  p.  Billii 
Billinga  p.  Clint 
Billinga  p.  Taylor,  7.".. 

Billington  Bl  I 

B      bam  p.  \\  eiderwaz,  "80. 

Birch  p.  Wrighl 

Bird  p. 

Bird 

Bird  p.  Wilkinson,  807. 

Birdsoll  p.  Phillips, 

Birmingham  p.  Andersoi  .  B4L. 

Birney  t>.  Hann, 

42,  6 1 1. 
Bishop  v.  Bishop,  6. 
Bishop  p.  Boyle,  129. 
Bishop  p.  Hampton,  I 
Bishop  ".  Bchm        .      B,  B16. 
Bisland  p.  Hewil  . 
Bi    ell  p.  Grant, 
Bissell  r.  Marine 

Bissell  p.  N.  V.  Centra]  K.  B  .  Bftl. 
Bissett  p.  Bissett,  810. 
Bitnerv.  Bitner,  881. 
Bittinger  u   Baker,  ~  L. 
Bivina  r.  Vinsant,  730. 
Black  p.  Black, 
Black  v.  Curraa,  159. 


Blark 

■ 
Black 

n 
u 

I   artlman,  1 

-  1. 

L 

I 
I 

741. 

Blanch 
Blanchard 
Blanchard 
Blanchard  ■ 

Blanchard  *.  1\ 

Blanchard 

.  Hanks,  741 
- 
npickler  v.  An.':     - 
Blantin  r.  Whitaker,  I 
Blatch    .  R 

.  -        . 
Bleca 

I 
Blight  p.  Schenok, 


I  \l;l.l.    <>i  CITED. 


XIX 


it,  Lessee  of  v.  R 

I  : 

Bliss  v.  Itattison,  501. 
Block  v.  ItcAuley,  54 ». 
. 

.  Fowler, 
116. 

[good  o.  Mohawk  A    II.   K.    It.. 

Bloom  p.  Van  Rensselaer, 
Bloomer  <•.  Henderson, 

er    .  \\      In- n,  611,  668,  567. 
Blount  v.  Robeson,  501. 
BlountcGee, 

Beard,  etc.,  o.  Trustees,  278,  863. 
Boardman  p.  Osborn,  196,  196. 
Boardman  o.  K  788. 

Boardman  r.  Wilson,  182. 
Bodwell  r.  Webster,  808,  804. 
Bogan  v.  Frisby,  816. 
Bogardus  p.  Trinity  Church,  254,  797. 
Boggs  v.  Merced  Mining  Co.  726,  744. 
Bogie*.  Rutledge,  124. 
Bogey  v.  Shute,  359. 
Bogy  v.  Shoab,  728,  781. 
Bohanon  v.  Walcot,  887. 
Boldry  v.  Parris,  877. 
Bolles  f.  Carli,  360. 
Bolles  v.  Duff,  325,  358. 
Bolles  v.  Wade,  336. 
Bolles  v.  Smith,  885. 
Bollinger  v.  Choteau,  326,  359. 
Bolster  v.  Cushman,  122. 
Bolton  v.  Carlisle,  790. 
Bolton  v.  Landers,  213. 
Bolton  v.  Lann,  831. 
Bond  v.  Bond,  792. 
Bond  v.  Bunting,  506. 
Bond  v.  Coke,  842. 
Bond  v.  Fay,  827. 
Bond  v.  Swearingen,  730. 
Bonnell  v.  Smith,  163. 
Bonner  v.  Peterson,  120,  137. 
Bonney  v.  Morrell,  831. 
Boody  v.  Davis,  307,   310. 
Booker  v.  Carlisle,  459. 


Bookei 

I.  M    | 

B  M  I    |    IJ . 

I  'I. 

I  18. 

I 

Booth  v.  Booth, 

Booth  v.  Terrell, 

798. 

: 
I 

hall,  106. 
Borland  r.  Nichols,  148. 
Borland  p.  Walrath,  810. 
Boakowita  v.  Davis,  500. 

.  889. 
Bossard  v.  White, 

.  p.  Binney,  199,  213,  216. 
Boston  p.  Eubank 
Boston  v.  Richan 
Boston  Bank  P. Seed,  C24. 
Boston  Iron  Co.  v.  King,  325. 
Boston  &  Lowell  R.  R.  v.  Salem,  etc, 

R.  R.,  G36. 
Boston  U.    P.  Co.   c.  Boston,  etc.,  R. 

R.,  636. 
Bostwick  v.  Atkins,  793. 
Bostwick  v.  Leach,  799. 
Bostwick  v.  Williams,  855. 
Boswell  v.  Dillon,  495. 
Boswell  v.  Goodwin,  342. 
Bosworth  v.  Danzien,  839. 
Bosworth  v.  Stutevant,  829. 
Botsford  v.  Burr,  500. 
Bottv.  Burnell,  757. 
Bott  v.  Perley,  755. 
Boudinot  v.  Bradford,  890. 
Bouland  p.  Kipp,  329. 
Bourn  v.  Gibbs,  398. 
Bourne  v.  Bourne,  318. 
Bours  v.  Zachariah,  794. 
Bours  t;.  Andrews,  515. 
Bowditch  v.  Banuelos,  509,  510. 
Bowen  v.  Bowen,  277. 


XX 


TABLE    OF    CASKS    CITED. 


Bowen  v.  Chase,  49. 

B  >wenw.  Hill,  622. 

Bowen  v.  Johnson,  329. 

Bowers  v.  Kessecker,  117. 

Bowen  v.  Oyster,  292. 

Bowen  v.  Porter,  I 

Bowie  v.  Berry,  117,  185,  498. 

Bowly  v.  Lamont,  875. 

Bowley  p.  Ro 

Bowlesby  p.  Bpeer,  '-IS. 

I 

Bowman  p.  M  i 

Bowm  in  p.  M  761. 

Bowman 

Bowne  v.  Potter,  122. 

Bozheim  »r 

Boxheimer  p.  B 

Boyce  v.  Coster,  ! 

B>>yce  p.  Owens,  794. 

Boyco  v.  Shiver, 

I  r.  Beck, 
Boyd  ».  Baker,  BIO. 
Boyd  v.  Blankman,  601. 
Boyd  p.  Brincken,  501 , 
Boyd  '■■  Cudderback,  827. 

Boyd  r.  C'.xili,  S87. 

Boyd  r.  England,   I  14. 

Boyd  o.  M   ■  »».:. 

Boyd  p.  Whitfield,  B  i0. 

Boyors  v.  Elliott,  268. 

Boyera  p.  Newbanks,  187, 

Boyleston  Ins.  Co.  d   Davie,  288,  242. 

Boynton  p.  Peterborough)  663. 

Boynton  p.  \l>.'^>,  801. 

Boynton  p.  Bawyer,  124. 

Bozon  v.  William*,  289. 

Bracket  v.  Petitioners,  696. 

Bracket  o.  Baum,  869. 

Bracket  p.  Groddard,  2.  799. 

Bracket  r.  Norcross,  254 

Bracket  p.  Ridlon,  817. 

Brackett  p.  Waite,  601. 

Bradford  v.  Cressy,  833. 

Bradford!;.  Foley,  418,  414. 

Bradford  v.  Marvin,  292. 

Bradford  ».  Randall,  808. 

Bradford  p.  Street,  664 

Bradish  v.  Gibb  .  568. 


Bradish  r.  Schanek,  201. 

Bradley  r.  Bosley.  -     . 

Bradley  ».  Bl  :.  883,  888. 

Bradley  v.  Chester  Valley  R.  R.,  361, 

Bradlo . 

B 

Bradlej       G         i,  871. 

Bradb 

Bradl-  *36. 

Bradli 

71. 

690. 
Brady    .  P 

Bruit  ntral 

I 

Brainl 
Brackli 

! 

all   .  r 

Brandon  p.  Rob  I   -75. 

Brandt  0.  1 
Brand! 
Branger  p.  Ma 

■  10. 

Brant  P.    Yu.  Coal   Iron  Co.,  562. 
Brant  p.  YViUo;:. 

Brashear  p.  Ma.  ey,  642. 

Bratt  p.  Bratt,  177. 

Brattle  Street  Church  p.  Grant,  41$, 

428. 
Bratton  p.  Mail 
Brawner  p.  Stamp.  600. 
Braybroke  p.  Enskip,  820. 
Brayfleld  r.  Brayfield, 
Brayton  p.  Jones,  826, 

titer  Bank,  341. 


TABLE   Ol     •   \-i       •  i  I  i  .1'. 


XXI 


Breathitt  r.  Whitaker. 
Brecken ridge  v.  AuM,  80S. 
Bnekenridge    v.    Brooks, 

851. 
Bn  ekenbridge  v.  Ornsby,  695,  798. 
Breedings  Tiiylor,  192. 
Brennan  v.  Whitaker,  4. 
Breseer.  Stiles,  888. 
Brossler  v.  Kent,  794. 
Brewer  v.  Connell,  1 2 
Breweru.  Conover,  216. 
Brewer  v.  Dyer,  198. 
Brewer  v.  Hardy,  776,  777 
Brewer  v.  Marshall,  G03. 
Brewer  v.  Vanarsdale,  146. 
Brice  v.  Stoker,  518. 
Brick  v.  Getsinger,  351. 
Brickettr.  Spofford,  70:;. 

Bridget;.  Eggleston,  802. 

Bridgerr.  rierson,  843. 
Bridges  v.  Pleasunts,  884. 

Bridges  v.  Purcell,  651. 

Bridgewater  v.  Bolton,  37. 

Bridgford  v.  Riddle,  802. 

Briggs  v.  Hill,  196. 

Briggs  v.  Hill,  295. 

Briggs  v.  Partridge,  805. 

Briggs  v.  Seymore,  333. 

Brigden  v.  Carhartt,  341. 

Brigham  v.  Porter,  310 

Brigham  v.  Shattuck.  880. 

Brigham  v.  Smith,  609. 

Brigham  v.  Winchester,  299. 

Bright  v.  Boyd,  702. 

Brightman  v.   Brightman,   398,    532, 
542. 

Brimmer  v.  Long  Wharf,  693. 

Brinckerhoff  v.  Lansing,  335. 

Brinkerhoff  v.  Eemsen,  877. 

Bringloe  v.  Goodson,  561. 

Brinkerhoff  v.  Marvin,  342. 

Brinley  v.  Whiting,  795. 

Brisbam  v.  Stoughton,  368. 

Briscoe  v.  Bronough,  292,  293. 

Briscoe  v.  Coulter,  760. 

Briscoe  v.  McGee,  241. 

Briscoe  v.  Power,  369,  371. 

Brislain  v.  Wilson,  433. 


Bristow  v.  Wards,  676. 

lirittoi)  v.  Hunt. 

Hroadrup  v.  Woodman,  507. 
Brobstv.  Brock, 

Brockelhunt  v.  Jeaaup,  202,326. 
Brodifl  r.  Stephen, 
Bromii  irder,  401. 

620. 
Bronson  r.  Coffin, 

dng«  o.  White,  810,  311. 
Brooks  v.  Barrett, 
Hr.>.>ks  r.  Bruyn,  I 
Brooks,  v.  Curti?,  620. 
Brooks  v.  Dutiell,  877. 
Brooks  v.  Everett,  116,  118,  388. 
Brooks  r.  Fowler,  500. 
Brooks  v.  Golater,  6 
Brooks  v.  Marburv,  484. 

Brooks  v.  M ly,  853. 

Brooks  v.  Shelton,  500. 

Brothers  v.  Harrell,  ."07. 

Broughton  v.  Randall,  123. 

Brown  v.  Bailey,  200. 

Brown  v.  Bartec, 

Brown  v.  Bates,  2 

Brown  v.  Beaver,  879. 

Brown  v.  Belmarde,  665. 

Brown  v.  Berry,  609. 

Brown  v.  Bowen,  725. 

Brown  v.  Bragg,  172,  191. 

Brown  v.  Bridges,  81,  400. 

Brown  v.  Brown,  507,  889. 

Brown  r.Budd,  294. 

Brown  v.  Chadbourne,  833. 

Brown  v.  Cascaden,  310. 

Brown  v.  Cherry,  366. 

Browne.  Cockerell,  697. 

Brown  v.  Cole,  333. 

Brown  v.  Combs,  507,  513,  326,  798. 

Brown  v.  Cram,  323. 

Brown  v.  Dean,  305. 

Brown  v.  Dewey,  305,  306,  31 1 

Brown  v.  Dye,  674. 

Brown  v.  Dysinger,  199. 

Brown  v.  East,  296. 

Brown  v.  Hager,  832. 

Brown  v.  Hogle,  254. 

Brown  v.  Hulyoke,  304. 


XX11 


TABLE    OF    <  A-l>    <  I  i '!.!•. 


Brown  v.  Huger,  830. 

Brown  v.  Illins,  615. 

Brown    .  •!  .  727,  7-1 

Brown  v.  Johnson,  852. 

Drown  v.  Cell  r,  19  I,  218. 

Brown  v.  King,  700. 

Brown  p.  Lamphear, 

Bmwri  r.  Lapham,    - 

Brown  u.Lsiwr  I'll. 

Brown  p.  Leach,  811, 

Brown  v.  Lincoln,  201. 

Brown  p.  Lunch, 

Brown  p.   McAli  -77. 

Brown 

Brown  r.  v  781. 

Brown  p.  Meredith,  1 l">. 

Brown  p.  Nevitt, 

Brown  e.  People's  Em 

Brown  v.  Pom    11,  182. 

Brown  v.  Robins,  618. 

Brown  v.  Saltonstall.  - 

Brown  v.  Simmons,  871. 

Brown  p.  Sneil, 

Brown  r.  BteWSXl 

Brown  p.  Bterritl  . 

Brown  r.  Thurston.  212. 

Browne.  Throckmorton,  717. 
Brown  v.  Tyler,  812. 
Brown  d.  Vanlier, 
Brown  p.  Veazie,  760. 
Brown  v.  Wellington,  288,  242, 
Brown  0.  Williams,  116,  129. 

Brown  p.  Windsor,  I 
Brown  r.  Wood,  254. 
Brown  v.  Wright,  760. 
Browne  v.  lvonno.lv,  E 
Brownfleld  v.  Wilson,  890. 
I'.row  nsen  p.  Hull,  246. 
Brownsword  p.  Kdw.irds,  640. 
Broyles  p.  Nowlin,  501. 
Bruce  p.  Bouney, 
Bruce,  Ex  parte,  289. 
Bruce  v.  Luke,  727.  781. 
Bruce  v.  Tony.  810, 
Bruce  ©.Taylor,  832. 

BrUCe  0.  "Wood,  90. 

Bruckner  0.  Lawrence,  882. 
Bindenell  p.  Elwes,  417,  4 18. 


Brummett 

Bee.,  36L 
Brundred  r.  Walker,  ' 
Brunson  r.  1 
Bruntonp.  Hall, 
Brush  r.  Brush,  - 
Brush  r.  Kinsley. 
Brush    .  v. 
Brush  r.  Wilkins,  888. 
Bryan  v.  A 

Bryan  p.  Bradley. 
Bryan  p.  Ramirez,  810. 
Bryan 

.  Waal . 

00. 
Bryant  p.  Cowart, 
Bryant       1 1 
Bryarr 

"  12. 
.  147,  148. 
Buchan  ».  Sun. 
Buchanan  II. 

.  >59. 
Buck 
Buck   . 

Buck  r.  PickweU, 
Buck 

Buckingham  p.  B 
Buckii  .  Drury,  147. 

Buckley  p.  Bud 

Bucklin  v.  Bueklin,  310. 

Bucknall  p.  S 

Buckworth     .  Thirkell,  45,  104. 

484. 
Bu  Id  p.  Brooke,  - 
Bue 

Buffalo  B,  R.  r.  Braimird,  758. 
Buffalo  Steam  Engine  Works  r.  [a* 

Buffum  p.  Buffum,  H 
Buffum  ,814. 

Bulger  v.  Roche, 
Bulkley  p.  Doll 
Bull  ».  Bull.  BB4, 


TABLE    OF    <    iSE8    <  ITED. 


xxai 


Bull  v.  Church,  1  18. 

Bull  v.  Kingston,  646. 

Bull  v.  Sykes,  312. 

Bullnrdv.  Bowers,  117,  12L 

Bullurd  v.  Harrison,  610k 

Bullardv.  Leach,  321,  359. 

Bullcn  v.  Runnels,  005. 

Bullitt  v.  Taylor,  802. 

Bullock  v.  Bennett,  539. 

Bullock  v.  DominiU,  77,  194 

Bullock  v.  Stone,  630. 

Bullock  v.  Waterman,  433. 

Bullock  v.  Seyznore,  542. 

Bullock  f.  Wilson,  7  L& 

Bullock  v.  Thorne,  661. 

Bulwer  v.  Bulwer,  71. 

Bumpus  v.  Platner,  817. 

Bundy  v.  McKnight,  881. 

Bunker  v.  Locke,  161,  351. 

Buntin  v.  Johnson,  877. 

Bunton  v.  Richardson,  214 

Burbank  r.  Day,  139. 

Burbank  p.  Pillsbury,  646. 

Burbank  v.  Whitney,  398. 

Bureh  v.  Brown,  888. 

Burch  v.  Carter,  819. 

Burd  v.  Dausdale,  108. 

Burden  v.  Thayer,  192,   277,  324,  386, 

389. 
Bnrdett  v.  Clay,  216,  329,  330. 
Burdett  v.  Spilsbury.  867. 
Burdick  v.  Heinley,  726. 
Burfoot  v.  Burfoot,  538. 
Burger  v.  Potter,  294,  296. 
Burgess  v.  Gray,  715. 
Burgess  v.  Wheate,  295,  440,  451,  602. 
Burk  v.  Hill,  853. 
Burk  v.  Hollis,  7,  G52. 
Burke  v.  Allen,  339. 
Burke  v.  Barron,  115,  140. 
Burke  v.  Lynch,  326. 
Burkhalter  v.  Ector,  816. 
Burleigh  t;.  Clough,  398,  564. 
Burnap  v.  Cook,  359. 
Burnell  v.  Martin,  362. 
Burnes  v.  Collins,  327. 
Burnet  v.  Denniston,   341,   334,  366, 

370. 


Burnett  v.  Lynch,  i  ■-• 

tt  v.  Pratt, 
Burnham  d.  Chandler,  816. 
Hums  r.  Barne,  s  37 
Burns  v  Bryant,  218. 
Burns    .  2   201. 

Burns  r.  Keas,  1 
Burns       I. 
Burns  v.  Thayer, 
Burnside  v.  Merrick,  116,  253. 
Burnside  o.  1  .  303. 

Burnside  v.  Twichell,  4,  5,  351. 
Burnside  V.  Waynmn,  303. 
Burr  v.  Br 
Burr  p.  Smith,  8S 
Burr  c.  Vei-d.-n,  I 
Burrell  v.  Bull,  501. 
Burrell  r.  Burrell,  699. 
Burrill  r.  Boardman,  544. 
Burrill  r.  Shiel,  o0<,  511. 
Burris  v.  Page,  116. 
Burroughs  v.  Foster,  542. 
Burroughs  v.  Nutting,  881. 
Burrows  v.  Gallup,  703. 
Burrows  v.  Mallay,  358. 
Burrows  v.  Pierce,  702. 
Burtu.  Hurlburt,  91. 
Burt  v.  Merchant's  Ins.  Co.,  753. 
Burtr.  Ricker,  319. 
Burton  v.  Barclay,  197. 
Burton  v.  Baxter,  329,  330. 
Burton  v.  Hintrager,  319. 
Burton  v.  Lies,  359,  361. 
Burton  v.  Reeds,  730. 
Burton  v.  Scherpf,  652. 
Burton  v.  "Wheeler,  372. 
Bush  v.  Bradley,  106. 
Bush  v.  Bush,  513. 
Bush  v.  Marshall,  730. 
Bush  v.  Peru  Bridge  Co.,  634. 
Bush  v.  Sherman,  363,  364. 
Bush  v.  Wilkins,  888. 
Bussman  v.  Gauster,  194. 
Butcher  v.  Butcher,  227. 
Butler  v.  Baker,  197. 
Butler  v.  Gale,  853. 
Butler  v.  Godley,  512. 
Butler  v.  Heustis,  43o,  571. 


XXIV 


TABLE   OF    (  L8E8    I  I  I  ED. 


Butler  v.  Ladue,  863. 
Butler  v.  Peck,  615. 
Butler  v.  Porter,  269. 
Butler  v.  Roys,  233,  2 
Butler?;.  Seward, 
Butler  &  Bfl  .  S]}. 

Butrick  v.  Wenwortb, 
Butterfleld  v.  Baker,  201. 
Butterfleld  p.  BealL,  1 1 
Butterfleld  ».  Parnhai 
Butts  ».  Francis, 
Button  v.  Cole,  882. 

Bj  QUm  P.    Bj  miiii,  S77. 

Byrane  r.  Rogers,  198. 

Byrne  v.  Taylor, 

Byers  v.  Wackman,  500. 


Cabot  v.  Windsor,  BE 
Cadellp.  Palmer,  176. 
Cadmus  b.  Jackson,  78L 
Oahill  p.  Palmer, 
Oaines  o.  Grant,  287,  601. 
Cairns  r.  Cliah. 
Cairns  r.  Colburn,  I  1   . 

Oalder  v.  Chapman,  7  i. 
Caldwell  v.  Center,  841. 
Caldwell  p.  Pulton,  ti 
Caldwell  p.  Harris,  199. 
Caldwell  r.  Taggart,  869. 
Calhoun  p,  Calhoun,  I 
Calhoun  p.  Cook,  694. 
Calhoun  r.  Curtis.  243. 
Calhoun  v.  Ferguson,  883. 
Calhoun  ,•.  RfcLIndon,  160. 
Calhoun  r.  Richardson,  7  •_'•">. 
Calhoun  p.  Tullass,  860. 
Calk  p.  Btribling, 

Calkins  o.  Calkins,  826. 

Calkins  p.  BiunseU,  334. 
Call  r.  Neely,  698. 

Calloway  p.  Ilearn.  801. 
Calloway  .  .  Doe,  7  1 1. 

Calloway  o.  People's  Bk.,  868,  364. 
Calmount  p.  ^\  bitaker,  61 1. 
Calvert  r.  Aldrich,  242,  621. 
Calvert  p.  Bradley,  182. 
Calvert  p.  Fitzgerald.  B 


Cambridge   Valley   Bank   r.  Delane, 

817. 
Cameron  r.  Irwin,  .*-;• 

•  run  r.  Little,  214. 
Cameron 
Camley  r.  Stamfield,  199. 

-  nith,  333,  717. 

Campl 

307. 

1 

I 

j0. 

171. 

I 

I  M 

I 

■    . 
Oampb      ».  "Wilson,  699. 

.  836. 

.  834 
Canal  I 

Canal  Trustee  I  p.  Havens,  837. 
Canby    .  P 
Canedy  p.  Mare-. . 
Canning  v.  Pinkham,  - 
Cannon 
1  i  r.  White,  74  I. 

.  Pet  . 
Capner  a.   Parmington  Mining  Co., 

851. 
Caraway  v.  Cham 

Oarhrej       w         •'  «,  I  ■"    I 08,  697. 

Card  r.  Urinman.  S 

<  .  Danielle, 

Carey  ;-.  Dennis,  B 

Carey  '06. 

Carlisle 

Carll  p.  Butman. 


TABLE   OF    C  18E£    <  l  l  ED. 


XXV 


Carlyon  r.  LoYering,  <U7. 
Carnianv.Jolnis.ni,  748. 
Carmichael  v.  Carmichael,  1'<1. 
Carmichael  s.  Trustees,  832. 
Carpenter  r.  Black   Hawk,  etc.,  Co., 

3G4. 
Carpenter  v.  Buller,  731. 
Carpenter  s.  Carpenter,  310. 
Carpenter  s.  Casper,  822 
Carpenters.  Dexter,  810. 
Carpenter  s.  Ins.  Co.,  327. 
Carpenter  s.  Koo 
Carpenter  s.  Longan,  3:52. 
Carpenter  v.  Murlu,  802. 
Carpenter  s.  Douhgerty,  360. 
Carpenter  v.  Prov.  Ins  Co.,  327. 
Carpenters.  Weeks,  122. 
Carpentier  v.  Thurston,  725. 
Carpentier  v.  Webster,  255. 
Carpentier  s.  Williamson,  359,  781. 
Carr  v.  Carr,  74,  307. 
Carr  s.  Erroll,  532,  537. 
Carr  v.  Hobbs,  202. 
Carr  s.  Holbrook,  305. 
Carr  s.  Jeanne,  542. 
Carr  s.  Hoxie,  815. 
Carr  v.  Rising,  306. 
Carriers.  Gale,  715. 
Carrig  s.  Dee,  613. 
Carrington  s.  Roots,  10. 
Carroll  v.  Ballance,  323. 
Carroll  v.  Hancock,  402,  482. 
Carroll  v.  Gillion,  699. 
Carroll  s.  Norwood,  782. 
Carroll  v.  Benick,  495. 
Carroll  v.  Yan  Rensselaer,  292. 
Carson  s.  Baker,  216. 
Carson  v.  Blazer,  835. 
Carson  s.  Coleman,  753. 
Carson  v.  Murray,  127. 
Carter  v.  Bennett,  329. 
Carter  s.  Carter,  307. 
Carter  v.  Champion,  359. 
Carters.  Denman,  852. 
Carter  s.  Hammett,  183. 
Carter  s.  Hunt,  407. 
Carter  s.  Montgomery,  500. 
Carter  v.  McMichael,  433. 


Carter  v.  linker,  135. 
( larter  v.  Rackett,  827. 
C:irt.-r  o.  Taylor,  821. 
Carter  r.  Thomas,  889. 
Carter  v.  Walker,  7>U. 

Carter  v.    Wan..-. 
Carter  c.  William*,    1 
Oartwright    .  191. 

Oaruthera  v.  Oaruthera,  147. 

Caruthen  v.  Humphrey,  333. 

Carvers.  Bow  lea,  M  L 

Carves  v.  Jackson,  411,  412 

Carwardine,  o.  Carwardine,  l    t. 

Oasborne  v.  - 

Case  v.  I  BOO. 

Case  r.  I  -02. 

Case  s.  Gerrish,  501. 

Case  s.  Wildridge,  (70. 

1  .  Gregory,  199. 

Casons.  Hubbard,  127. 

Cusporus  s.  Jones.  140. 

Cass  s.  Bellows,  760. 

Cass  s.  Martin,  1 17. 

Castleman  s.  Belt,  324. 

Caswell  v.  District,  201. 

Cates  s.  Wallington,  835. 

Cathcart  s.  Bowman,  853. 

Catherwood  v.  Watson,  500. 

Catlin  s.  Kidder,  254. 

Catlin  s.  Brown,  544. 

Caufmann  v.  Sayre,  358. 

Cavender  v.  Smith,  743. 

Cecil  v.  Beaver,  796. 

Cecil  s.  Dynes,  358. 

Center  s.  P.  &  M.  Bank,  329. 

Central  Bridge  Co.,  v.  Lowell,  636. 

Chace  s.  Chace,  888. 

Chadbourne  v.  Mason,  839. 

Chadwick  t>.  Haverhill  Bridge,  633. 

Chadwick  s.  Perkins,  507. 

Chaffee  s.  Baptist  M.  Co.,  876. 

Chairs  v.  Brady,  307. 

Chalker  s.  Chalker,  277,  278. 

Challefoux  v.   Ducharme,   241,    260, 

700,  745. 
Catter  v.  Sawyer,  573. 
Chamberlains.  Bradley,  841. 
Chamberlain  s.  Crane,  780. 


XXVI 


TABU-;    <)]     i    VSES    '  [TED. 


Chamberlain  o.  Smith. 
Chamberlain  v.  Btannton,  812. 
Chamberlain  v.  Thompson,  31- 
Chamberlin  v.  Donahue, 
Chambers  v.  G-oodwii  . 
Chambers  v.  Nicholi 
Chamber3  v.  Perry,  618. 
Chambers  v.  St  Louis,  384. 

<  lambers  v.  Wilson, 

( '  lamplin  v.  Poster,  359. 
Champlin  v.  Lb 

I ': i ■  1 1 1 1 { . 1 1 < ■  886. 

Chandler  o.  I 
Chandlers  Cent,  177 
( lhandler  <•.  Lansford,  7    L 
Cliandler  v.  Spear,  696,  BIO. 
Chandler  v.  Temple,  B12, 
Cliandler  v.  Thompson,  618. 
<•  ii on dler  v.  Thurston,  71,  201. 
(    ianey  v.  <  lhaney,  120. 
Chapel  p.  Clapp, 

< '  apin  o.  School  1  Kst»,  461. 

(  liaplin  /■-  Chapl 

I  lhaplin  p.  Sawyer,  169, 

<  lhapman  v.  Black,  I 

<  lhapman  v.  Chapman, 
I  lhapman  v.  Ban  <\ . 
Chapman  v.  Bolmea, 
Chapman  o,  B 
Chapman  v.  Long,  8, 
Chapman  v.  Schroeder,  181,  144. 
Chapman  v.  Smith,  ■ 

I  lhapman  u.  Tanner,  2  '-' 
Chapman  v.  Towner,  179. 
Chapman  o.  Wright, 
Charle  o.  Safford,  696. 

<  lharles  v.  Duboae,  601. 
t  lharles  v.  Waugh,  760. 

Charles    Kiver    Bridge    ».    Warren 

Bridge,  6  16,  71 I. 
t  lharles  r.  Rankin,  818. 
Charter  v.  Stevens,  866. 
Chase  v.  Abbott,  ;vi2.  S28. 
Chase  v.  Eazelton,  74,  81,  400. 
Chase  v.  Lookerman,  819,  • 
Chase  ».  McDonald,  841. 
Chase  v.  Palmer,  826. 


M  f.  Peck,  290,  2 
Aerstone,  I 
•  v.  Woodburv,  869,  370,  371. 
Chasemore  o.  -.  516. 

Ohatteii 

.  Arnold, 
1         -'borough       .    I  . -•••  :..     tQ 

I  Millard,  36'.<. 

1  P 

Cheevor  r.  Rut. 
Chelli^ 

1 

Cherringtori  r. 

..  308. 
( 'lierrv    .  M 
I 

618. 
I. 
I 

i 

11. 
( Ihew  108. 

Chew 

( Ihew  >•.  Karii.' 
I 

7">3. 

Chick  0.  Rollins,    - 
Chick  r.   Willetts,  810, 
Child  v.  Starr,  8     . 

I 
Chiles  r.  Oonlev,  - 
Chilton  r.  Braider';?  Admx.. 
Chilton  v.  Hendi 
Chilton  r.  Nil.lcf. 
Chilton    -    W  ilson,  714. 
Chipman  v.  Emetic,  81,  191. 
Ohipman  o.  Tucker,  B 
Chippendale,  Ex  parti 
Ohisolm'a  Heirs  r.  Ben.  ^77. 
una,  1-1  -. 
i. 
Choline. v  r.  PaXtutl,  8 


TABLE    OF   CASES    «  [TED. 


\XVll 


Cholmondlcy   p.    Clinton,    32G,   451, 

..il 
Chouteau  p.  Bckhart,  71"). 
Chowning  v.  Cox,  303. 
Christopherr.  Austin,  L96. 
Christy  v.  Alford,  701,  714. 
Christy  r.  Dyer,  161,  862. 
Chubb  r.  Johnson,  I  I 
Chudleigh's  Case,  149,  W8,  161. 
Church  v.  Burghardt,  699,  7  in. 
Church  p.  Chapin,  501. 
Church  v.  Church,  601. 
Church  v.  Oilman,  812. 
( 'hurch  r.  Kemhle,  644. 
Church  v.  .Meeker,  887. 
Church  t>.  Savage,  37  I. 
Church  r.  Btutling,  601. 
Churchill  p.  Ihilbert,  652. 
Churchill  p.  Bunt,  I 
Churchill  v.  Luring,  301. 
Cillyt*.  Cilly,  877. 
Cincinnati  p   Newhall,  794. 
Cin-,  Wil.,  etc.  R.  K.   v.  Cliff,  815. 
City  Bank  v.  Smith,  279. 
Claflin  v.  Carpenter,  799. 
Clapp  v.  Draper,  2,  10,  799. 
Clapp  v.  Fogleman,  6  12. 
Clapp  v.  Stoughton,  277. 
Clapp  v.  Tirrell,  802. 

Claremont  v  Carlcton,  835. 

Clark  v.  Baker,  326,  542,  727,  730. 

Chirk  v.  Beach,  C22. 

Clark  v.  Bell,  296. 

Clark  v.  Brown,  339. 

Clark  v.  Bush,  325. 

Clark  v.  Clark,  245,  500. 

Clark  v.  Condit,  308,  363. 

Clark  v.  Crego,  509. 

Clark  v.  Douglass,  501. 

Clark  v.  Fox,  672. 

Clark  v.  Gifford,  815. 

Clark  v.  Graham,  807. 

Clark  v.  Griffith,  148. 

Clark  v.  Henry,  303,  304,  308. 

Clark  v.  Holden,  76. 

Clark  v.  Hunt,  294,  296. 

Clark  v.  Jones,  191. 

Clark  v.  Lawrence,  616. 


Clark  --.  Linebei 
Clark  r.  Lyon,  303. 

Clark  i:  .Martin, 
Clark  v.  BlcAnulty,  - 
Clark  v.  Monroe,  121. 
Clark  v.  O 

Clark  v,  Pickering,  '171. 
Clark  r.  l'.vnt'M  i  . 
Clark  o.  Kay,  8 
Clark  r.  Itedman,  127. 
Clark  r.  R.-yburn,  861,  318. 
:  p.  Rochester,  761,  759. 
Clark  v.  Shannon,  168. 
Clark  9.  Smith,  217.  826,  303,  532. 
Clark  p.  Taintor, 
Clark  r.  Troy.  - 
Clark  --.Terry.  642. 
Clark  p.  Trail,  716. 
Clark  r.  Way.  10. 
Clark  p.  Wheelock,  213. 
Clark  v.  White,  63:!. 
Clark  o.  Wilson,  326,  327. 
Clark  p.  Bancroft,  876. 
Clark  v.  McClure,  694. 
Clarkson  i-.  Daddridge,  330. 
Clary  v.  Frayer,  663. 
Clary  v.  Owen,  821. 
Clason  v.  Corley,  324,  361. 
Clason  v.  Shepherd,  339. 
Claussen  v.  La  Franz,  445. 
Clavering  v.  Clavering,  75. 
Clay  v.  Cousins,  671. 
Clay  v.  Wren,  323. 
Clayton  v.  Blakely,  177. 
Clayton  v.  Liverman,  886. 
Clearwater  v.  Rose,  37,  330. 
Cleary  v.  McDowell,  90. 
Cleaver  v.  Cleaver,  665. 
Clee  v.  Seaman,  199. 
Clemence  v.  Steere,  74,  70,  77. 
Clemens  v.  Bromfield,  213. 
Clement  v.  Youngman,  10,  827. 
Clepper  v.  Livergood,  105. 
Cleveland  v.  Boerum,  350. 
Cleveland  v.  Flagg,  795. 
Cleveland  v.  Hallett,   462,   467,   504, 

506,  562. 
Cleveland  v.  Jones,  703. 


XXV111 


TABLE    OF    CASKS    CITED. 


Cleveland  v.  Martin, 

Clifford  v.  Parker,  71*0. 

Clifford  v.  Watts,  195. 

ClifU.  White,  197. 

Climert).  Wallace-,  832. 

Clingan  v.  Mitcheltrec,  887. 

Clineu.  Black,  198,  80 

Clinefelters  v.  Ayers,  ■"■ 

Clinton  v.  Meyer-,  61  1. 

Clinton  National  Bank  v.  Manwaring, 

318. 
Clock  v.  Gilbert,  714. 
Cloud  v.  Calhoun,  608,  510. 
Clough  v.  Bowman,  s-7. 
Clough  v.  Hosford,  216. 
Clowes  v.  Dickinson,  370. 
Clowes  v.  Hawley,  _">l. 
Cluggage  r.  I  > i j   o  m. 
CI ute  v.  Chit.  1 
Clymerv.  Dawkins,  264 
Coatesv.  Oheever,  76,  117,  136. 

.-.  Woodworth,  600. 
Coard  v.  Holderness,  499. 
Cobb  v.  Piddle, 
C'bb  v.  Davenport,  B 
Cobb  v.  Stokes,  214. 
Cobert  v.  Cobert,  117. 
Coburn,  Ex  part  . 
Coburn  d.  Coxeter,  B  10. 
Coburn  p.  Harvey,  ,;  16. 
Coburn  v.  Mollis,  697. 
Coburn  v.  Palmer,  199. 
Cochran  p.  O'llorn.  92,  104. 

Cochran  p.  Van  Burlay,  7.">4. 

Cochrane  v.  Guild,  868. 

Cocke  v.  Brogan,  780. 

Cocker  v.  Cooper,  653. 

Coder  v.  Huling,  ,2">L>. 

Codman  r.  Winslow,  I 

Codvrisev.  Taylor,  296. 

Cody  v.  Quarterman,  213,  217. 

Coe  v.  Columbia,  etc.,  K,  li.  Co.,  803. 

Coe  p.  McBrown,  312,  368. 

Coffin  v.  Coffin,  877. 

Coffin  e.  Elliott,  888. 

Coffin  p.  Heath,  242. 

Collin  p.  Loring,  312. 

Coffmanr.  liuck.  216. 


Cogan  v.  Cogan,  398.  ,    484, 

419,  4_'J. 

I,  66. 
Coggswell  r.  Tihi 
Coit  v.  Starkweather,  809. 
Coker  p.  Pearsall,     - 
Colbur  .  264 

Colburn  r.  Richards,  614 
Colby  v.  Kenniston,  - 
Colchester  v.  Ro; 

Tolland,  833. 
Cole 

Cole  r.  <  I 
Cole  I J 

. 
Cole  r. 

104 
Cole  r. 
Cole  r. 
Cole  v. 

.ail,  411.  4-.'     117. 

• 

Coleman  v.  Bark 
Coleman  p.  I 

Coleman  r.  Lane,  241. 

I 

hi  ,-.  l.\ man,  E 
Coleman  •.  W 

Coleman  p.  Van  ^  ,  392. 

Coles  r.  Allen,  601. 
.  -oi. 
501. 
Oollamer  r.  Langdon,  319,  329. 
Collenderr.  Mar.-li.  I 
Collier  r.  Blake, 
Collier  c.  Pierce 
Collins  r.  Canty,  219. 
Collins  t-.  Carlile,  ">64 

Collins  v.  Carman,  1  18, 
Collins  v.  Haabrouck,  172,  lS3. 
Collins  p.  Hopkins, 
Collins  p.  Launburg,  4t>9. 

Collins  r.  Smith,  601. 
Collins  r.  Town! 
Collins  a,  Terry, 
Collins  r.  Tillon. 


TABLE    <>l     <  ASEfi    <  I  l  ED. 


YY1X 


Colman  r.  Padcard,  I 
Colquhoun  v.  Atkinson,  341. 
Colter  v.  Jones,  869. 
Coltman  v.  Sanhouse,  548. 
Colton  v.  Leavy,  889. 
Colvin  v.  Warford,  200.  *90. 
Cohvell  v.  Woods,  304,  305. 
Colyerv.  Pinch,  290. 
Coman  v.  Lakey,  498. 
Combs  v.  Jolly,  875. 
Comby  v.  McMichael,  504. 
Comer  v.  Chamberlain,  108 
Comerford  v.  Cobb,  808. 
Comfort  v.  Blather,  !>^:>. 
Commissioners  v.  Kempshall,   833. 
Commissioners  v.  Thompson,  840. 
Commissioners  v.  Withers,  753. 
Commonwealth  r.  Alger,  751. 
Commonwealth  v.  Dudley,  741. 
Commonwealth  v.  Eoxbury,  682,  744. 
Commonwealth  v.  Williams,  600. 
Compton  v.  Mitton,  877. 
Comstock  v.  Comstock,  851. 
Comstock  v.  Hilt. 
Comstock  v.  Hadlyme,  878. 
Comstock  v.  Smith,  730,  790. 
Conant  v.  Little,  115,  136. 
Concord  Bank  v.  Bellis,  731,  794. 
Concord,  etc.,  Ins.  Co.  v.  Woodbury, 
327,  361. 

Concord  Mut.  Ins.  Co.  v.  Woodbury, 
327. 

Condict,  Ex'rs  of,  v.  King,  542. 

Conedy  v.  Marcy,  755. 

Congleton  v.  Pattison,  190. 

Conklin  v.  Conklin,  538. 

Connellys.  Doe,  812. 

Conner  v.  Bradley,  193. 

Conner  v.  Lewis,  498. 

Conner  v.  Shepard,  74,  116. 

Connery  v.  Brooke,  828. 

Conner  v.  Whitmore,  319,  329,  326. 

Conover  v.  Hoffman,  562. 

Conover  v.  Porter,  789. 

Conover  v.  Van  Water,  339. 

Conover  v.  Warren,  294. 

Conrad  v.  Harrison,  376. 

Constant  v.  Matteson,  517. 


Converse  v.  Blumrick,  296. 
Converse  v.  Converse,  881. 
Converse  t>.  Oook, 
Conway  v.  Alexander,  :;02,  305,  306, 

810.  "      ' 
Conway  r.  Cable,  755. 
Conway  v.  Deerlk-M,  741. 
Con  well  v.  Evill,  307,  308. 
Cook  v.  Babcock, 
Cook  v.  Banker,  292. 
Cook  v.  Bisbee,  385. 
Cook  v.  Brightly,  190,  ■:-i\,  645. 

Cook  v.  Bn.wn,  812. 

Cook  v.  Champlain  Transp.  Co.,  78, 

400. 

.  Col  Iyer,  307. 
I 

Cook  v.  Ellington,  506. 
Cook  v.  Fisk,  135. 
Cook  v.  Gerhard,  404. 
Cook  v.  Hammond,     145,     385,    387, 

396. 
Cook  v.  MeChristian,  161. 
Cook  v.  Prigden,  653. 
Cook  v.  Sinnamon,  798. 
Cook  v.  Stearns,  651. 
Cook  v.  Weaver,  875. 
Cook  v.  AVhiting,  2,  842, 
Cooke  v.  Hull,  617. 
Cooke  v.  Husbands,  469. 
Cooke  v.  Laxley,  199. 
Cookson  v.  Richardson,  501. 
Cooley  v.  Dewey,  674. 
Coolidge  v.  Melvin,  757,  802. 
Coombs  v.  Jordan,  341. 
Coombs  v.  Young,  115. 
Coon  v.  Brickett,  278. 
Coon  v.  Smith,  726. 
Cooper  v.  Adams,  213. 
Cooper  v.  Cooper,  245,  433,  512,  546. 
Cooper  v.  Crosby,  364. 
Cooper  v.  Davis,  71,  S51. 
Cooper  v.  Jackson,  813. 
Cooper  v.  3Ierritt,  296. 
Cooper  v.  Ulman,  330. 
Cooper  v.  Watson,  860. 
Cooper  v.  Whitney,  118,  468. 
Cooper  v.  Wolf,  312. 


X  X  X 


TAB!  E 


Cope  v.  Cope,  37  1. 
Cope  v.  Meeks,  794. 
Cope  v.  Wheeler, 
Copeland  v.  Copeland,  I     ■    7  J 
Copeland  v.  Mercantile  Ins.  Co.. 
Copeland  v.  Stereos,  l 
Copeland  v.  Yaakum,  352,  303. 
Copley  •».  Kiddle,  746. 
Coppinger  v.  Rio 
( lorbetv.  Laurens,  68. 
lorbet  v.  Stone, 

ii  ,-.  Waterman,  332. 
Corbin  v.  Cannon,  264. 
Corbin  v.  Heal] 
Corey  r.  People,  1 16. 
Corliss  r.  Corliss,  816. 
Cornelius'  Will, 
Cornelison  v.  Brown 
Cornelius  v.  Smith,  607. 
Cornelius  v.  Ivans,  -77. 
( lornell  p. 
Cornell  p.  Ball, 
( )ornell  p.  Jacl 
I  lornell  p.  Lamb, 
<  lorning,  l-'.x  parte,  2£ 
Cumin-'  d.  < fould,  196,  60S. 
Corning  p.  Smith.  S61. 
Corning  p.  Troy  Eton 
( Jorriell  p.  Ham,  168. 
I  tortelyen  o.  Hathaway,  824 
i  lortelj  "i  v.  Van  Brunt,  8  :  L 

ibadie  p.  Costabadie,  513. 
Costere.  Clark,  116,  118, 
Cotterell »,  A.dams,  829,  330. 
Cotterell  p.  Dutton,  715. 
Cotterell  v.  Lou.  .307. 

Cottinger  p.  Fletcher, 
Cuttle  r.  Young,  ' 
Cotton  p.  Blocker,  818 
Couch  p.  Stratton,  1 17. 
Couch  p.  Gorhan, 
Coulter  o.  Holland,  185. 
Coulter  p.  Robertson,  1 I-. 

;  17,  118. 
I  Joursey  p.  Davis,  102,  HI,  412. 
I  'ovindale  v.  Aldridch,  570. 
( lowden  u.  St.  John,  6. 
Oowdry  p.  Coit, 


Cowdry  v.  Day, 

Cowell  >:  Lumley,  189.  194. 

Cowell  p.  W 

Cowl  p.  Vanium,  _ 
■ 

.  '.08. 
( lowman  >,  Hill,  118. 
Coxr.  i 

Uey,  833. 
i   Henry,  B 
I 

5. 

.  Hi  tfullii  . 

I 

I  17. 

I 

I 

■ 

I 

.      ,      7  17. 

.  \\  althall,  1 17. 
i  ^85. 

Crain 

Crainbaugh,    .  BLugler,  501. 
Cramer  p.  Bnrtoi 
Cramer  p.  Crumbaugh,  879. 
> 

i.  B<  onell,  804,801,  307. 
«  trigham,  •".. 

Crane  p.  Caldw  11,  284 
I     Llenbaugh, 
Crane  p.  Deming, 
Crane  p.  March,  818, 
Crane  v.  Palmer,  120,  l-i.  i 

I 

n  p.  Cram, 


TABLE   ol     <  aBES    I  II  ED. 


XXXI 


Cravens  v.  Falconer,  *77. 

Craycoft  v.  Craycroft,  885. 

Crawford  v.  Chapman,  100. 

Crawford?-.  Edwards. 

Creech  o.  '  225. 

Creel  v.  Kirkham,  201. 

Cressfield  v.  Btorr,  421,422. 

Creap  r.  Hut-on. 

Cresinger  r.  Welch, 

Cresson  r.  Miller,  795. 

Cresson  r.  Stout.  5. 

Crest  v.  Jack,  242. 

Crews  v.  Thread 

Crippen  r.  Morrison,  6. 

Crippen  r.  Mors-. 

Criafield  p.Storr, 

Crispen  r.  Hannavan,  697. 

Crittenden  v,  Johnson,  110. 

Crittenden  o.  Woodruff,  122. 

Croadev.  Ingraham,  116,  127. 

Crocheren  v.  Jaques,  508. 

Croskett  v.  Crockett,  09.  73,  74,  70. 

Croskott  r.  Maguire,  817. 

Croft  v.  Booster,  332. 

Crostr.  Croft,  878.  . 

Crommelinv.  Thiess,  182,  214. 

Crompe  v.  Barrow,  570. 

Cromwell  v.  Bank  of  Pittsburg,   300 

Cromwell  v  Brooklin  Ins.  Co.  327. 

Cromwell  v.  Tatte,  808. 

Cromwell  v.  "NVooley,  878. 

Cronin  v.  Richardson,  839. 

Crooker  v.  Crooker,  359. 

Crookerv.  Holmes,  310. 

Crooker  v.  Jewell,  329. 

Crop  v.  Norton,  506. 

Crosby  v.  Bradbury,  829. 

Crosby  v.  Houston,  368. 

Crosby  v.  Loop,  192. 

Crosby  v.  Wadsworth,  799. 

Cross  v.  Carson,  277. 

Cross  v.  Morristown,  837. 

Cross,  v.  Noble  853. 

Cross  v.  Robinson,  333. 

Cross  v.  State  Bank,  789. 

Crossly  v.  Lightowler,  617. 

Crouch  v.  Pinyear,  75. 

Crow  v.  Mark,  243. 


Crow  v.  Tinsley, 

Cmxl 

10. 
I 
Crump  D.Norwood,  116,  121,  122. 
Crutcl  679. 

Cubitt    .  r 

Cudlip  '•■  Rundall,  2br,. 
Cudworth  on,  542. 

Cullen  r.  lio1  •■•:•.  264. 

Cullwich  r.  Swindell,  5. 

Cumberland  o.  Oolrington, 
Cumberland  •  601. 

Cumin 

Cumminge  v.  Bramh 

Cumi.: 

Cunningham  o.  W7. 

Cunni 

Cunningham  v.  Hawkins, 

Cunni:.  .  lorton,  212.  218. 

I  Cunningham    o.    Hoolton,   212,   216, 
217,  218. 

Cunningham  v.  McKnight,  127. 
I  Cunyngham  cThurlow,  661. 

;  Curl  v.  Lowell,  213. 

Curie  v.  Barrell,  746. 
,  Currant  v.  Jags,  500. 
I  Currier  v.  Barker,  177,  218. 

Currier  v.  Earls,  216. 

Currier  v.  Gade,  333,  326,  701. 

Currier  v.  Perley,  214,  218. 

Curry  v.  Sims,  544. 

Curtis  v.  Gardner,  843. 

Curtis  v.  Hobart,  137. 

Curtis  v.  Hoyt,  611. 

Curtis  r.  Miller,  197. 

Curtis  v.  Rice,  434. 

Cushing  v.  Aver,  371. 

Cushing  v.  Blake,  495. 

Cushing  v.  Hurd,  318. 

Cushing  v.  Thompson,  327. 

Cushman  v.  Luther,  311. 

Cushman  v.  Smith,  753. 

Curtis  r.  Root,  318. 

Cutler  v.  Davenport,  744. 

Cutlery.  Cambridge,  697. 


XXX11 


TABLE    OF    CASES    CITED. 


Cutler  v.  Davenport,  873. 
Cutler  v.  Doughty,  542. 
Cutler  v.  Dickenson,  307 
Cutting  v.  Caster,  81. 
Cuttsv.  York  Co.,  312,  812. 
Cuylew  v.  Bradt,  237. 

I>. 

Dadmun  v.  Lamson,  318,  826,  1\~>. 

Daggett  v.  Rankin,  339.  303. 

Dakin  o.  Allen,  216. 

Dalby  v.  Pullen, 

Dale  v.  Shiveley, 

Dale  Tbuslow,  BOO. 

Dallam  v.  Dallam,  644. 

Dalton  r.  Bowker,  8  1. 

Dalton  v.  Daltoi 

Dame  o.  I  lame,  21  L 

I  lame  o.  \\  >■.     ite,  7 

Damon  o,  Damon,  891. 

Dana  o.  Binney, 

1  tana  v.  Harrington,  :    i. 

Dana  o.  Jackson  St.  Wharf,  834. 

I):mar.  Middle 

Dana  v.  Newhall, 

Dana  o,  Valentine,  <■--. 

Danforth  o.  Bei 

Danforth  v.  Smith,  I 

Daniel  v.  Ball,  - 

Daniels   .  Brown,  201. 

Daniels  v.  Cheshire,  - 

Daniels  ».  Bisenlord,  811,  812. 

Daniels  v.  Pond,  2,  76,  842, 

Daniels  o.  Thompson,  642. 

Danner  v.  Shiasler,  671. 

Darby  v.  Anderson,  199. 

Darby  v.  Darin. 
Darby  0.  Bays,  330. 
1  tarby  v.  Mayer,  7 1 1. 
I  > a reus  r.  Crump,  G 
Darcy  v.  Askwith,  75,  7<'>,  77. 
D'Aroy  v.  Blake,  117. 
Darling  o.  Chapman,  333. 
Darst  r.  Bates,  812. 

Dart  D.  Dart,  727,  781. 

Dartmouth  College  ».  Clough,  182. 
Dartmouth  College  v.  Woodwai 
Dashill  v.  Attorney-General]  499. 


Daswell  v.  De  La  Lavza,  i 
Daubenspeck  r.  Piatt,  305,  306. 
Daughaday  r.  Paine,  ! 
Davenport  c.  Alston,  160. 
Davenport  r.  Coltman.  499. 
Davenport  p.  Farrar,  117. 
Davei  ;  827. 

Dave: 

Davenport  v.  Tym  I,  717. 
D  rner,  794. 

.  a.; 

I 

i 

Davis  7    1 

:  ai.k,  71. 
I  im,  176. 
Davis  r.  Christian, 

. 

Da\ 

Davis  ■■■  Gilliam,  78,  74. 

; 
.  II  lyden, 
Davis  o.  Hemingwaji  360. 

Davis  r.  .1 

Davis    .  358. 

1 1 .    to.  Mai     .  106,  10(5. 

Da\ 

Davis  v.  Mayor, 

.   L82, 
Davis  •••  M 
Davis    .  n  y,  608. 

.  Norton,  414. 

.  « twnsby,  818. 


TAHLK    OF    <    \BE8    <  [TED. 


X  X  \  1 1 1 


Davis  p.  Pierce,  821. 

Davis  v.  Rainsford,  839. 

Duvis  v.  Rogers, 

Davis  v.  Rechstein,  :i:J2. 

Davis  v.  Smith,  194. 

Davis  v.  Speed, 

i  >avis  v.  Stonestreet,  302,  305,  306,  308. 

Davis  v.  Paul,  885. 

Davis  v.  Thompson,  71,  212,  218. 

Davis  v.  Walker,  135,  189. 

Davis  v.  Wetherell,  861,  500. 

Davis  v.  Winn,  370. 

Davison  v.  Johonnot,  754. 

Davison  v.  Ramsay,  769. 

Davone  v.  Fanning,  365. 

Dawson  r.  Clark,  409. 

Dawson  v.  Bhirley,  s06. 

Day  v.  Adam-,  809. 

Day  v.  Allender,  611. 

Day  v.  Caton,  620. 

Day  v.  Cochrane,  106,  108 

Day  v.  Day,  879. 

Day  v.  Griffith,  812. 

Day  v.  Watson,  196. 

Deakins  v.  Hollis,  878. 

Deadrick  v.  Armour,  564. 

Dean  v.  Comstock,  216. 

Dean  v.  Dean,  500,  507. 

Dean  v.  Fuller,  809. 

Day  v.  Mitchell,  118. 

Dearborn  v.  Dearborn,  311,  323. 

Dearborn  v.  Taylor,  329,  372. 

Dearing  v.  Thomas,  163. 

Dearing  v.  Watkins,  339. 

Dearmond  v.  Dearmond,  813. 

Deaver  v.  Parker,  318. 

Deaver  v.  Rice,  201. 

Deboe  v.  Lowne,  542. 

Debon  v.  Colfax,  71. 

DeBruler  v.  Ferguson,  884. 

DeCamp  v.  Hall,  885. 

Decker  v.  Livingston,  192. 

Decouche  v.  Savetier,  700. 

Deefendor  v.  Speaker,  510. 

Deems  v.  Phillips,  790. 

Deerfield  v.  Arms,  687. 

Deeringv.  Adams,  504. 

Deery  v.  Cray,  788. 


De  Pore  I  ».  Byrne,  190. 

De  Forest e.  Fulton  I  827. 

DeFrance  i .  DeFrance,  305,  306. 

501. 
DeGrey  v.  Jlirliardson,  106. 
DeGroot  v.  McCotter,  358. 
DeHav(  n  v.  Landell, 
Deihl  1-.  King,  642. 
Delahay  ».  Clement,  .".22, 
Delaha 
Delafleld 

Delain  v.  Kernan,  807. 
DeLancy  < .  Ganong,  191,  199,  200. 
Delaney  v.  Fox,  199. 
Delaney  v.  Root,  201,  799. 
Delano  v.  Wilde,  7">7. 
Ddaplaine  r.  Oooke,  760. 
Delaplaine  c.  Lewis,  369. 
Delashman  c.  Barry,  17:). 
Delaunay  r.  Burnett,  747. 
Delavergne  v.  Norris,  861. 
Delmonico  v.  Guillaume,  252,  253. 
Deloney  v.  Walker,  667. 
Deloney  v.  Hutchinson,  238,  253. 
Demarest  v.  Willard,  190,  192,  324. 
Demarest  v.  Wynkoop,  319,  326,   329, 

3G3. 
Deming  v.  Bullitt,  808. 
Deming  v.  Colt,  252. 
Den  v.  Adams,  214. 
Den  v.  Allaine,  538,  542. 
Den  v.  Branson,  245. 
Den  o.  Cook,  542. 
Den  v.  Crevelin,  563. 
Den  v.  Demarest,  106,  401,  453. 
Den  v.  Dimon,  337,  318. 
Den  v.  Drake,  214,  218. 
Den  v.  Edmonston,  216. 
Den  v.  I'arlee,  813. 
Den  v.  Flora,  673. 
Den  v.  Hanks,  782,  801. 
Den  v.  Hay,  798. 
Den  v.  Howell,  213. 
Den  v.  Hunt,  695,  697. 
Den  v.  Johnson,  177. 
Den  v.  Jones,  671. 
Den  v.  Kinney,  74. 
Den  v.  Kip,  700. 


XXX IV 


TAELE    Oi  I   III. I'. 


Den  v.  Manner?,  630.  880. 
Den  v.  Mul ford,  714. 
Dene.  Partee,  816. 
Den  v.  Post,  182,  191. 
Den  v.  Puckey,  418. 
Den  v.]  ,818. 

Den  v.  Bel 
Den  r. 

Den  v.  Small,  642. 
I),  ii  r.  Smith,  • 
.  Stockton. 

Dell  |  .  i 

itman,  451,  518. 
1 1  671. 

Den  c.  Vim  01( 
Den  v.  Wli'"  ler,  767. 
Den  v.  Wright, 
Denlmiii  r.  II.'.  "14. 

Denn  v.  Cornell. 
Dem  -•  11°.   ;; 

Denj 

216 

Dennis  b    M  '  lagg,  461. 
Dennis    .  W 
Dennison    , 
Dennison  v.  Reed,  191. 

I  •  ■  ,-.  Autrey.  ' 

581. 

90n  0.   Mitchell. 
Denny  v.  Allen,  617. 
Denton  v.  Donnor,  601. 

Denton  0.   IVrr\ 

Dentli  .7  1. 

Do  I '  Michael,  276,  -77. 

Deputy  o.  Btapleford, 
Derby  ».  D<  rby, 
Derby  (Earl  of)  d.  Taylor, 
Deny  Ba  h    .  ^  ■  bafc  r,  813. 
Deny  r.  Derry,  500,  601. 
Deacarletl  v.  Dennett,  879. 
Desilver,  Blatter  of,  702. 
Dei  loge  v.  Pearca,  I 
Desp  rd    .  Walbridge,  I 
Deupree  v.  Deupree,  >s^ 
Deutsel  v.  Waldie,  1 

1  >    \  i.  •! .:   .-.   Nnv-vr,   199. 

Devenpeck  v.  Lambert,  611. 


Devin  r.Hendenbott,  368. 
Devin  v.  Himee,  J 
Devinney  v. 
D  .  E      leffer,  716. 

\  329,  860. 

H8. 

.  A-  .    . 

<>6. 
Dunham.  303.  306. 

- 
M 

1 ' 

">00 
Dick  217. 

Dieki:  .  1'  . 

.  William   I  IS     -l. 

;  i 

I  .Todd, 

-.  Jsrman, 

Dillingham 

Dillon  v.  1! 

Dilworth  r.  aUyfleld,  i 

Dimond  v.  Billing 

Dingley  ».  Buflum,  7.  176. 

Dingham  a.  Kelly.  I 

r.  Baty,  I 
Dixon  p.  Diaon,  S 
i I  \  ■    ■  D 

Dixon  r.  NieholK 
Dixon  r.  S.i\ille.  117. 


TABLE    OF    '  A8ES    <  [TED. 


XXXV 


Donne  v.  Lake,  88S. 
Doane  v.  Willcutt,  728. 
Dobbins  v.  Brown,  856. 
Dobson  v.  Land,  327. 

Dob80n  r.  Itiirev  . 

Dockham  d.  Parker,  -01. 
Dodd  r.  Acklom,  L98. 

Dodd  r.  Bolme,618. 

Dodge  v.  Cole,  601. 

Dodge  t».  Dodge,  741. 

Dodger.  Evans,  292. 

Dodger.  Hollinshead,  810. 

Dodge  o.  McClintock,  662. 

Dodge  v.  Nichols,  794. 

Dodger.  Stacy,  811. 

Dodge  v.  Walley,  827. 

Dodson  v.  Ball,  434. 

Doe  v.  Abernathy,  792. 

Doe  v.  Ashburner,  178,  179. 

Doe  v.  Baker,  214. 

Doet».  Bank  of  Cleveland,  339. 

Doer.  Barnard,  714. 

Doe  v.  Banthrop,  494,  504. 

Doe  v.  Barton,  326. 

Doe  v.  Bateman,  182. 

Doe  v.  Bates,  674. 

Doe  v.  Beardsley,  745. 

Doe  v.  Bedford,  7">7. 

Doe  v.  Bell,  177. 

Doe  v.  Benjamin,  178,  179. 

Doer.  Beauclerk,  532,  537. 

Doe  v.  Be  van,  183. 

Doe  v.  Biggs,  468,  493. 

Doe  v.  Bird,  254,  699. 

Doe  v.  Blacker,  805. 

Doe  v.  Bliss,  191. 

Doe  v.  Botts,  240. 

Doe  v .  Brabant,  413. 

Doe  v.  Britain,  559,  561. 

Doe  v.  Brown.  714. 

Doe  v.  Burlington,  72,  77. 

Doe  v.  Campbell,  697,  714. 

Doe  v.  Carleton,  533. 

Doe  v.  Challis,  415,  417,  537. 

Doe  v.  Chamberlaine,  216. 

Doe  v.  Charlton,  434. 

Doe  v.  Collier,  493,  494. 

Doe  v.  Collis,  434. 


Doe  v.  Considin.  .    102,  403, 

■111.  H2, 

117,  418. 
Oox,  21 1. 
Doer.  Davis,  21'.,  4:'A,  504. 
Doe  v.  Dcavors,  J 
1 1  e  o.  Dixon,  173. 
Doe  v.  1 1  75 1. 

Doe  v.  Dowdall,  727. 
Dunbar,  218. 

I.  504,  644. 
Eyre,  565,  668. 
!  ,494,  535. 

.  Frinch,  6 
Doe  v.  Fonnereau,  434,  532,  536. 
1 1  Ford,  397. 

Doe  v.  Fridge,  798. 
Doe  v.  Galacre,  419,  421,  422. 
Doe  v.  Gilbert,  669. 
Doe  v.  Glover,  398. 
Doe  v.  Goldwin,  278. 
Doe  v.  Gwinnell,  135. 
Doe  v.  Hales,  324. 
Doe  v.  Harvey,  434. 
Doe  v.  Hasell,  218. 
Doe  v.  Henage,  632,  537. 
Doe  v.  Holme,  401. 
Doe  v.  Homfray,  493,  468,  535. 
Doe  *.  Howell,  539,  540. 
D(  >e  v.  Hawland,  245. 
Doe  v.  Hull,  225,  226,  698. 
Doe  v.  Humphreys,  219. 
Doe  v.  Hurd,  801,  802. 
Doe  v.  Insurance  Co.,  760. 
Doe  v.  Ironmonger,  434. 
Doe  v.  Jepson,  190. 
Doe  v.  Jones,  199,  278. 
Doe  v.  Lea,  401. 
Doe  v.  Lewis,  277.  564. 
Doe  v.  Luxton,  61. 
Doe  v.  Lyde,  546. 
Doe  v.  Mace,  71. 
Doe  v.  Martin,  464. 
Doe  v.  Masters,  193,  277. 
Doe  v.  Mcllvaine,  745. 
Doe  v.  McKeay,  213. 
Doe  v.  McLaskey,  310,  318,  329. 
Doe  v.  Moore,  401. 


XXX  VI 


TABLE    OF    CA8E8    CITED. 


Doe  v.  Morgan,  897,  530.  536. 

Doer.  Morphett,  218. 

Doe  v.  Murrell,  1  99. 

Doer.  Naylor,  810. 

Doe  v.  Nichols,  462,  504. 

Doe  v.  No  well,  401 . 

Doe  v.  Oliver,  41 1. 

Doe  r.  Palmer,  210. 

Doe  v.  PasBingham,  4^>4,  494. 

Doer.  Fan.. 

Doe  v.  Peach,  667. 

Doe  v.  Peck.  27  - 

Doe  v.  Pen<]l<'t,' 

Doer.  Perry  n,  401,   102,   103. 

Doer.  Phillips  191. 

Doer.  Porter,  214,  217. 

Doe  v.  PrettyniKii.  792. 

Doer.  Prigg,  Wl,  102. 

Doe  r.  Pri 

Door.  P  Wl,  102, 

Due  r.  Pukey,  117. 

Doe  o.  Rees,  199. 

Doe  r.  Reyi     d,  199,  i 

Doe  v.  Richards,  37. 

Doe    .  Ries,  178. 

Doe  r.  Rivers,  107. 

Doe  r.  Robinson,  61. 

Doe  o.  Salkeld,  166. 

Doe  v.  Scarborough,    530,  632, 
5G1. 

Doer.  Scot  t.  61 

Door.  Scudamore,  107,  421,  49 

Doe  r.  Selhy,  898,  415,  117. 

Doer.  Shcppard,  671. 

Doe  o.  Bhipphard,  416. 

Doe  v.  Bhotter,  563. 

Doe?-.  Smith,  218. 

Doe  v.  Stevenson,  39S. 

Doer.  Tidbury,  199. 

Doe  v.  Timmins,  604. 

Doe  v.  Tunnoll. 

Doer.  Turner,  71,  671. 

Doe  v.  Vincent,  666,  569. 

Doe  r.  Walker,  171,  175. 

Deer.  Watts,  214,  218. 

Doer.  Webb,  414. 

Doe  r.  Whittingham(  184. 

Doo  p.  Wilkinson,  218. 


Doe  v.  TVing,  718. 

Doe  r.  Wood,  215. 

Doer.  Worsli  y,  40-}. 

Doebler's  Appeal,  434. 

Dordge  r.  Bowers,  211. 

Dollman  r.  Harris,  163. 

Domii 

Donah  644 

Donahue's  K- 

Donaldsr.  Plumb. 

. 

Donnell  r.  Clark, 

Donnel  p. 

Donnelly  r.  ! 

Dood  .   553. 

Doo! 

DoolittV-  p.  Eddy, 

Doolitt  '.  566. 

Dork 

: 
Dor 

Jl4. 
Dorr.- 

!  I 

.  71. 
.  St.  Louis, 
.  i 
■ 
Doswell  r.  Do  La  Lanoza,  714. 

r  p.  Rike,  •"in 
D..ty  r.  Mitchell. 
Dongalo  r.  Fryer, 
Dougherty  r.  McColgan,  310. 
Douglas  p.  Congreve,  434,  494,  516. 

Shumway,  10. 
Douglass  p.  Bishop, 
Douglass  r.  Bruce,  500. 
Douglass  r.  Cline, 

- 
Douglass  •.  Daren,  819. 
Douglass  r.  Durin,  82 

Dougrey  p.  Tipping, 
Doupe  r.  Genin, 

Dow  r.  Dow,    115. 


TABLE    OP   I  A6ES    <  I  I  ED. 


XXXV  11 


Dow  v.  Gould,  80.,. 
Dow  v.  Jewell,  500,  790,  794. 
Dowling  v.  Hennings,  020. 
Downer  v.  Clement,  859. 
Downor  v.  Fox,  859,  370. 
Downer  v.  Smith,  861. 
Downer  e.  Wilson,  884,  .537. 
Downer  v.  Grazebrook,  865,  501, 
Downes  v.  Turner,  278. 
Downing  v.  Marshall,  409,  884. 
Downing  v.  Palmateer,  841,  862. 
Downing  v.  Wherrin,  640,  542. 
Doyle  v.  Doyle,  885. 
Doyle  v.  Mulladay,  542. 
Doyle  v.  Howard,  304. 
Doyle  v.  White,  310. 
Dozinv.  Gregory,  77. 
Drake  v,  Ramsay,  793. 
Drake  v.  Wells,  771. 
Drane  v.  Gunter,  610. 
Draper  v.  Jackson,  245. 
Drayton  v  Grimko,  566. 
Drayton  v.  Marshall,  320,  302. 
Drentzer  v.  Bell,  103,  802. 
Dresser  v.  Dresser,  506. 
Drew  v.  Clark,  875. 
Drew  v.  Rush,  373. 
Drewt*.  Swift,  830. 
Drew  v.  Fowle,  854. 
Drinkwater  v.  Drinkwater,  192. 
Drown  v.  Smith,  73,  74. 
Druid  Park  Co.  v.  Dittinger,  508. 
Drum  v  Simpson,  500. 
Drummond  v.  Drummond,  544. 
Drummond  v.  Richards,  310. 
Drummond  v.  Gant,  326. 
Drury  v.  Drury,  146. 
Drury  v.  Clark,  359. 
Drury  v.  Foster,  789. 
Drury  v.  Tremont,  332,  801, 
Dubois  v.  Beaver,  9,  620. 
Duboisv.  Hull,  294,  296. 
Dubois  v.  Kelly,  6,  7,  176. 
Dubois  v.  Ray,  642. 
Dubose  v.  Young,  818. 
Dubs  v.  Dubs,  105,  108,  117. 
Dubuque  v.  Maloney,  837. 
Dubuque  R.  R.  v.  Litchfield,  144. 


Duche  781. 

Duck  r.  Sherman,  81 3. 
Ducker  v.  Belt,  359. 
Dudden  v.  Guardians,  615. 
Dudley  c.  Bergen,  886. 
Dudley  p.  Cadwell,  330. 
Dudley  d.  Dickerson,  29 1. 
512.     Dudley  r.  Sumner, 824. 

i  Dudley  Canal  Co.  V.  Grazebrook,  617. 
Duff  o.  Wilson,  199. 
Duffield  o.  Duffleld,  401. 
Dufl5eld  B.Morrows,  881. 
Duffy  r.  Calvert,  516. 
Duhiing  f.  Duhring,  116. 
Duke  r.  Balm,  292. 
Duke  v.  Dykes,  876. 
Duke  i».  Harper,  199,  200,  213,  699. 
Dummerston  v.  Newfane,  115. 
Dumont  v.  Kellogg,  614. 
Dumpor'a  Case,  184,  191. 
Dunbar  v.  Starkey,  318. 
Duncan  v.  Dick,  110. 
Duncan  v.  Drury,  321. 
Duncan  v.  Duncan,  148,  890. 
Duncan  v.  Forrer,  237. 
Duncan  v.  Hodges,  789. 
Duncan  v.  Lafferty,  670. 
Duncan  v.  Jandon,  501. 
Duncan  v.  Sylvester,  238,  260. 
Duncan  v.  Smith,  321. 
Dunch  v.  Kent,  516. 
Dundas  v.  Bowles,  328. 
Dundas  v.  Hitchcock,  794. 
Dunham  v.    Osborn,    116,    121,    135, 

385,  388. 
Dunham  v.  Railway  Co.,  312. 
Dunham  v.  Williams,  837. 
Dunklee  v.  Adams,  312. 
Dunklee  v.  Wilton  R.  R.  Co.,  828. 
Dunkley  v.  Van  Buren,  362. 
Dunlap  v.  Dunlap,  887. 
Dunlap  v.  Stetson,  833. 
Dunlap  v.  Wilson,  834. 
Dunn  v.  Bank  of  Mobile,  533. 
Dunn  v.  Gaines,  798. 
Dunn  v.  Keeling,  562. 
Dunn  v.  Merriweather,  757. 
Dunn  v.  Raley,  303. 


XXXV111 


TABLE    OF    I  A-KS    CITED. 


Dunn  v.  White,  853. 
Dunne  v.  Trustee,  etc.,  215. 
Dunningv.  Ocean  Nat.  Bank,  509. 
Dunscombv.  Dunseomb,  105,  116. 

eth  v.  Hank  of  U.  Stat.-.-,  186. 
Dunshee  v.  Partneki, 
Dunwoodie  >■.  Reed,  416,  417,  ">37. 
Duppa».  Mayo,  277,  646. 
Dupup  v.  Strong,  240. 
Durand  o.  Isaacs,  322. 
Durando  v.  Durando,  116,  388. 
Durel  v.  Boisblane,  618. 
Duren  p.  Pi  881. 

Durfee  v.  Pavitt,  500. 
Durham    .  Ai        r,  116, 181. 
Duttonu.  1  ■ 
Dutton  v.  Rust,  840 
Duttoti  o.  Warsobauer, 
Duty  v.  Graham. 
Duval  Bibb,  202,  i 
Duval  0.  Mat-hall,  nOO. 

Dwight  o.  Cutler,  216. 
Dwinnell  o.  P         .  880. 
Dyer  o.  dark,  116. 
I  >yer  o.  I  >j  er,  ">(W. 
1  >_v  r  r.  Depui,  ■ 
Dyer  i>.  Martin,  ! 
1  >_\cr  v.  [vea  ( '"•  827. 
Dyer  v.  Sanford,  606,  I 
Dyer  o.  Bhirtlief, 
Dyer  v.  Toothaker,  888. 
Dyer  v.  Wigbtman,  104. 
Dyetto.  Pendleton,  1 
Dyson  v.  Bradshaw,  814. 

E 

Kagle  Fire  Ins.  Co.  o.  Lent, 
Barle  o.  Barle,  806. 
Barle  v.  Fisk,  816. 
Bastabrook  p.  Sapgood,  86. 
Easter  p.  L.  M.  K   R.,  882. 
Easterly  p.  Kenny,  608. 
East  Baven  p.  Bemingwaj . 

man  p.  Batchelder,  811,  81S 
Eastman  p.  Poster,  880. 
Baton  v.  Eaton,  792. 
Baton  p.  Green,  806,  307. 
Baton  0.  Lyman,  861. 


Eaton  r.  Simonds,  117,  318,  321,  355, 

Eaton  r.  Straw,  688,  542. 
.26. 
Eaton  r.  Whiting,  S01,  308. 
Bberle  .  11"-. 

.  805. 
I 

ns,  796. 
Eddy  r.  Baldwin,  600. 
1-M  1-  ■ 
i 

Edge  v.  Worthu 
. 

.  '  -: 

i 
Edmonds  •.    ,  \¥elsl  . 
Edringl   -.11  irpwr,  802,  304,  306, 
Edson  v.  M  ■ 
Bdn  . 
Edward 

Edwards  p.  Rdn  '■00. 

Bdwai 
Edwards  r.  Parkhurst, 

Elwar 

Edwards  v.  B 
Edwarda  r.  Blatei 
Edwards  v.  Smith,  875. 
Edwards  r.  Trumbull,   28S,   290. 

Ed 'A 

Egerton  «•  Brownlow,    146,   488,  484, 

Bbrenberg,  Inberitan<  i 
Bifert  p.  Reed,  I 
Bitel  761. 

Ela  p.  Edward-.  - 

t    .  Kiel,  ' 

Elder  r.  Bouse.  310. 

■.  .  ,  116,  388. 
Bldridge  r.  Kldridge,  401. 
Eldridge  p.  Smith.  312. 

I 
Elkins  o.  Edwards.  310,  326. 
BUcock  •  RCapp,  i 


TABLE   OF    CASES    <  II  ED. 


XXXIX 


Ellen  *.  Ellon,  714. 
Ellicott  v.  Ellicott,  667. 

Ellicott  *.  Pearl,  696. 

ott  v.  Welch,  124,  292, 

Elliottson  v.  Feetham,  622. 
Elliott*.  Aiken,  189,  1%,  198. 

Elliott  v.  Edd'ms,  760. 

Elliott  v.  Fitchburg  R.  R.,  614. 

Elliott  *.  Fisher,  1 18. 

Elliott  *.  Maxwell,  306. 

Elliott  *.  Northeastern  R.  R.,  616. 

Elliott*.  Patton,  352. 

Elliott  *.  Pearce,  794. 

Elliott  w.  Rhett,  005. 

Elliott*.  Sleeper.  886,  794,  807. 

Elliott  v.  Bmith,  199. 

Elliott*.  Stone,  213,  214 

Elliott*.  Turner,  279. 

Elliott  v.  Wood,  364,  365,  366. 

Ellis  *.  Diddy,  130. 

Ellis  *.  Duncan,  616. 

Ellis  *.  Ellis,  140. 

Ellis  *.  Hatfield,  674. 

Ellis  *.  Hussey,  822. 

Ellis  *.  Messervie,  882. 

Ellis*.  Paige,  213. 

Ellison  *.  Daniels,  301,  318,  329. 

Ellison*.  Wilson,  816. 

Ellsworth  *.  Cook,  10(3. 

Ellsworth  *.  Lockwood,  364. 

Elmendorf  v.  Carmiohael,  744 

Elmer  *.  Loper,  355. 

Elmore*.  Marks,  812. 

Elsey  *.  Metcalf,  812. 

El  well  v.  Burnside.  242. 

El  well*.  Shaw,  805. 

Elwesw.  Mawe,  6,  400. 

El  wood*.  Black,  794. 

El  wood*.  Klock,  124,  145,  385,  396. 

Ely  v.  Ely,  296,  327,  790. 

Ely  *.  Scofield,  340. 

Ely  *.  Scofield,  816. 

Ely  *.  McGuire,  322. 

Emans  *.  Turnbull,  686. 

Emanuel  *.  Hunt,  330. 

Embree  *.  Ellis,  143. 

Embrey*.  Owen,  617. 

Emerson  *.  Atwater,  307. 


Emerson  v.  Fisk,  661. 

Emerson  o.  VLooi  ■ 

Emerson  p.  Proprietors,  etc.,  856. 

Emerson  < .  Simpson,  373,  863. 

Emery  o.  <  Ihase,  776. 

Emery  p.  <  )wii  gs,  310. 

Emmons  o.  Murraj ,  792. 

Emm 

English  r.  Carney,  330,  358. 

English  *.  Lane,  303. 

Ennis  o.  Harmony  Ins.  Co.,  327. 

Eno  v.  Vecchio,  619. 

Ensign  v.  Colburn,  351. 

Ensminger  v.  Davis,  834^ 

Ensminger  v.  People, 

Erickson  v.  Willard,  506. 

Erskine  *.  Townsend,   298,   312,  332, 

333. 
Ervine's  Appeal,  754. 
Erwin  v.  Fergeson,  359,  360. 
Erwin  v.  Olmstead,  255,  697. 
Eskridge  v.  McClure,  292,  295,  296. 
Eslava  v.  Farmpr,  664. 
Esmond  *.  Tarbor,  832. 
Essex  Co.  *.  Atkins,  469. 
Estep  *.  Estep,  189. 
Estep  v.  Hutchman,  754. 
Est}  *.  Baker,  213. 
Esty  v.  Clark,  665. 
Esty  *.  Currier,  2,  842. 
Eustace  *.  Scawen,  238. 
Euston  *.  Friday,  335. 
Evans  p.  Brittain,  241. 
Evans  *.  Chew,  509. 
Evans  *.  Elliot,  324. 
Evans  v.  Evans,  104,  129. 
Evans  *.  Gale,  796. 
Evans*.  Gibbs,  815. 
Evans  *.  Huffman,  326. 
Evans  *.  Inglehart,  70. 
Evans  *.  Jayne,  620. 
Evans  *.  Kimball,  321. 
Evans  *.  King,  495,  504. 
E\ans  *.  Norris,  312. 
Evans  v.  Pierson,  148. 
Evans  *.  Roberts,  757. 
Evans  v.  Smith,  886. 
Evans  ».  Webb,  115. 


xl 


TABLE    OF    CASES    CITED. 


Evansville  p.  Page,  839. 

Eversv.  Challis,  544. 

Everts  v.  Agnes,  815. 

Everts  v.  Beach,  243. 

Evertson  v.  Booth,  880 

E  wing  v.  Burnet. 

Ewingv.  Smith, 

Ewing  v.  Savarj . 

Excelsior  Ins.  Co.  v.  Ins.  Co.,  827 

Exeter  v.  Odiorne,  1 58,  542. 

Eyrisr.  Hitrick,  608,  BIO. 

Eyster  v.  Hathaway,  810. 

Eyster  v.  Gaff, 

F. 

Fabert).  Police,  84,  188,  770. 
Fahrney  v.  Holsingen,  842. 
Fair  p.  Brown,  828. 
Fair  p.  Stevenot,  819. 

Fairbanks  v.  M. -teal I',  812. 

Pairchild  p.  Ohastelleux,  90, 
Fairchild  v.  Grave,  Ml'. 
Pairlittle  ».  G    bert,  727. 
Fairman  p.  Ba^  in,  501. 

Fairman  P. 

Falis  d.  Conway  Ins.  Co.,  309. 

Falls  «.  County  Batter, 
Falls  v.  Keis,  887. 
Fancher  p.  Bfontagre,  829 
Fanning  p.  Kerr, 
Fanning  p.  Wiloox,   714. 

FanshaVa  C  -  .  ~  '- 
Farley  v.  Craig,  192,  644. 
Farleye.  Thomson,  386. 
Farmer  p.  Grove,  307. 
Fanner  p.  Peterson,  705. 
Farmers'  Bank  v.  Branson,  338,  326. 
Farmers'  Hank  0.  Glenn,  B61. 
Farmers'  Fire  Ins.    Co.    p.    Edwards, 

333. 
Fanners'  Loan  Co.  P.  Carroll,  461. 
Farmers'  Loan  Co.    v.    Hendrickson, 

2. 
Farmers'  Loan    Co.  v.   Hughes,   368, 

509. 
Parnsworth  p.  Taylor.  841. 
Farquharson    v.   Eichelberger,     I  - 

604. 


Farr  v.  Smith,  242. 
Farrant  v.  Lovell,  325. 

.  883. 
Farrar  p.  Chaufl'etet'-.        767. 
Farrur  r.  Farrar. 
Farrar  v.  Fessenden,  696. 
Farrell  v.  Enright,  688. 
Farrell  r.  Parlier,  361. 
Farrington  v.  Barr,  443,  496. 
Farrow  r.  Edmonson,  - 
Farrow  r. 

Fars  I  -1 19. 

Pan  117. 

78L 
Patheree  v.  F.uheree. 

■ 
Pauls  kenbrough,  322,  833. 

-.  Birner, 

741. 
w    teho  .-••.  r»01. 
Faxon    .  F   lv<  y,  507. 

Fay  p.  Br  -     100. 

oey,  117,  I 
Fay  v.  Fay,  663. 
F-.y  r.  Many,  I 

Fay  p.  Rj  912. 

101. 

10. 
. 
Feger  p.  K 
Felch  p.  Hooper. 
Felch  p.  Taylor,  1S2.  318. 
Felder  p.  Murphy,  359. 
Fell  p.  Young,  816. 
Fellows  p.  Smith,  601. 

re  ■-  Taui  .  ■ 
Fenn  p.  Holme.  7 

nan  r.  Smith,   651. 

Fenwick  p.  Floyd,  788. 
Ferguson  p.  Sedges,  886. 

ion  p.  Bell. 
Ferguson  p.  Tweedy,  107. 
Fernald  p.  Linoott, 
Perrall  p.  Kent,  201. 
Forrel  p.  Woodward.  »335. 


TABLE   OF   CASES    CITED. 


Xli 


Ferrin  v.  Kenney,  213. 

Ferrris  D   Carver,  725. 

Ferris  v.  Coovei,  760. 

Ferris  v.  Crawford,  310. 

Ferris  n.  Ferris,  309. 

Ferris  v.  Gibson,  538. 

Ferris  v.  Harshea,  855. 

Ferris  v.  Irving,  805. 

Ferris  v.  Van  Vechton,  501. 

Ferson  v.  Dodge,  538. 

Fetrow  v.  Me  ni  weather,  358,  795. 

Field  v.  Howell,  175. 

Field  v.  Jackson,  81. 

field*.  Mills,  182. 

Field  v.  Stagg,  789. 

Field  p.  Swan,  324. 

Fifield  v.  Sperry,  361. 

Fifty  Associates  v.  Grace,  193. 

Fifty    Associates    v.  Howland,   193, 

281. 
j/ightmaster  v.  Beasley,  242. 
Filbert  v.  Hotf,  255. 
Filliter  v.  Phippard,  78. 
Filman  v.  Divers,  501. 
Filson  v.  Filson,  878. 
Finch  v.  Finch.  500. 
Finch  v.  Winchester,  339. 
Finch's  (Sir  Movie)  Ct.se,  798. 
Findlay  o.  Smith,  74,  75,  116. 
Finlay  v.  King's  Lessee,  273,  276. 
Finley  v.  Simpson,  824. 
Finley  v.  U.  S.Bank,  359. 
Fiquet  v.  Allison,  201. 
Fireman's  Ins.  Co.  v.  McMillan,  815. 
Firestone  v.  Firestone,  122. 
First  Parish  v.  Cole,  461. 
Fish  v.  Howland,  294. 
Fisher  v.  Beckwith.  812. 
Fisher  v.  Deeming,  190. 
Fisher  v.  Fields,  467,  493,  504,  506, 

507. 
Fisher  v.  Grimes,  116. 
Fishery.  Hall,  812. 
Fisher  v.  Johnson,  292,  295. 
Fishers.  Morgan,  143. 
Fisher  v.  Mossman,  310. 
Fisher  v.  Otis,  310,  330,  333. 
Fisher  d.  Provine,  245. 


Fisher  v.  Smith,  837. 
Fisher  e.  Taylor,  503. 

.  Eastman,  116,  388 
Fiskv.Fislc,  312. 
Pisk  r.  Suibbs,  796. 
Fiske  v.  Tolman, 
Pitch  v.  Bunch,  Ml. 
Fitch  v.  Casey,  700. 
Fitch  v.  Cotheal,  337. 
Fitchburg  C"tton  Co.  v.  Melvin,  67, 

195,  196, 
Fithian  r.  Monks,  332. 
Fitz  v.  Smallbrook,  668. 
Fitzbugh  t>.  Barnard,  816. 
Fitzhugh  v.  Crogan,  809. 
Fitzpatrick  v.  Fitzgerald,  513. 
Fitzpatrick  v.  Fitzpatrick,  883. 

Flagg  v.  Bean,  110. 

Flagg  v.  Barnes,  844. 

Flagg  v.  Flagg,  32:3,  753. 

Flagg  v.  Mann,  259,  302,  305,  306,  307, 

310,  507. 
Flagg  v.  Thurston,  831. 
Flanagan  v.  Philadelphia,  835. 
Flanagan  v.  Westcott,  331. 
Flanders  t;.  Lamphear,  311,  312. 
Flanders  v.  Parker,  311. 
Flannery's  Will,  876. 
Fleming  v.  Griswold,  715. 
Fletcher  v.  Chase,  321,  334. 
Fletcher  v.  Holmes,  350,  725. 
Fletchers.  Mansur,  790,  812. 
Fletcher  v.  McFarlane,  186. 
Fletcher  v.  Peck,  745. 
Flinn  v.  Owen,  877. 
Flint  v.  Clinton,  510. 
Flint  v.  Sheldon,  303,  310. 
Flint  v.  Steadman,  434. 
Florentine  v.  Barton,  755. 
Floyd  v.  Barker,  885. 
Floyd  v.  Floyd,  218,  889. 
Floyd  v.  Mosier,  163. 
Floyer  v.  Lavington,  310. 
Flynn  v.  Williams,  855. 
Flynt  v.  Arnold,  817. 
Flynt  v.  Hubbard,  500. 
Fogarty  v.  Sawyer,  323. 
Foley  «.  Cowgiil,  815. 


xlii 


TABLE    OF    CASES    CITED. 


Foley  v.  Harrison,  745. 

Foley  v.  Howard,  7r*7. 

Foley  v.  Wyeth,  618. 

Folk  v.  Varn,  803. 

Folley  v.  Vantuyl,  813. 

Folts  v.  Huntley,  196. 

Fonda  v.  Sage,  277,  741,  812. 

Fonnereau  v.  Fonnereau,  037. 

Fountain  v.  Ravenel,  v-  1. 

Foos  v.  Whitmore,  506. 

Foot  v.  New   Haven  &  Northampton 

Co.,  052. 
Foote  v.  Burnet,  B52. 
Foote  v.  Culvin,  'J,  201,  501,  503,  799. 
Foote  v.  Cincinnati,  196. 
Forbes  v.  Hall,  746. 
Forbes  o.  Moffat,  821. 
Forbes  v.  Smiley,  216. 
Ford  v.  Cobb,  8,  400. 
Ford  o.  Erekine,  139. 
Fordo.  Flint,  484 
Fordv.  Ford,  887. 
Ford  r.  James,  B18. 
i  ord  v.  Philpot,  366. 
Ford  p.  Smith,  292,  296. 
Ford  p.  \\  bitl< 
Ford  v.  Wilson,  O'.'T,  717. 
Fordyere.  Willis,  B07. 

Formal)  P.  Troup.  "'42. 
Fornian's  Will,  8M. 
Forrest  v.  Trammel,  122. 
Forshaw  v.  Higg&ns,  610. 
Forster  v.  Hale,  607. 
Foray  the  «.  Ballance,  748. 
Forsytbe  v.  Price,  70. 
Port*.  Fort,  875. 
Fort  Plain  Bridge  P.  Smith,  636. 
Forth  v.  Chapman,  642,  543. 
Forth  v.  Norfolk,  318,  603. 
Fortman  e.  Buggies,  761. 
Fortune  v.  Buck,  878. 
Forward  P.  I  Vets.  264. 
Fordiek  v.  Gooding,  140. 
Foos  o.  Crisp,  841. 
Foster  u.  Browning,  *>53. 
Foster  v.  Dennison,  782. 

Foster  p.  Dwinel  D.  119. 

Foster  v.  Equitable  Ins.  Co.,  327. 


Foster  v.  Hickox,  359. 

9.  Billiard,  66,  373. 
r  v.  Joice,     7. 
Foster  v.  M  514. 

! '    .-shall,  65. 
::66. 
MS,  71. 

.  Tbom|  -  • .  86L 
.  Xrasteei 

Foster    .  \' s    Bead,  327. 
!  :r.  Bush,  335. 

Fowler  p.  I  >■  |  so,  544. 
Fowler 

Fowler       P 

Fowler  c.  Shearer,  127.  794. 

Palm  r,  827,  356. 
Fox  II. 

1 1 
Fox  v.  M 
Fox  p.  Pratt, 

"   l. 

-41. 

. 

Frail  p.  Bllis, 

oeatown  p.  Peering,  500. 
Fnmeis  r.  SS 

Francisous  -.  464 

Franklin,  I  B88. 

Franklin  p.  Qorham,  •     I 
Franklin  v.  MeEntyre.  500. 
Franklin  p.  Merida,    ' 
Franklin    p.    Osgood,    868,    611,    618, 

668,  666. 
Franklin  p.  Palmer,  1 
Franklin  p.  Talmadge,  798. 

Fransen's  Appeal,  — 

21. 
Frazier  v.  Barnum,  603. 
Frazier  P.  Brown,  615. 
Frazier  p.  Brownlow,  98,  469. 
Frederick's  Appeal,  B76. 
Frederick  r.  Gray,  264 
Freedman  p.  Goodwin.  746. 

Ley  p.  Tapper. 
Freeman  p.  Baldwin, 

Freeman  p.  Burnham.  501. 
Freeman  p.  Cooke.  513. 


TABLE    OJ  CITED. 


xliii 


Poster,  853. 
Freeman  v.  Beadle}  ,  216. 
Freeman  v.  Parsley,  508. 
Freeman  v.  Bcofield, 
Freeman  v.  Schroedei . 
Freeman  v.  Wilson,  -07. 
•r  v.  Stotenbur,  176. 
Freke  v.  Carberry,  K73. 
French  v.  Barron,  866. 
French  v.  Braintree  Mfg.  Co.,  605. 
French  v.  Burns,  307. 
French  v.  Crosby,  1  18. 
French  <•.  French,  780. 
French  v.  Fuller,  217. 
French  v.  Marstin,  608. 
F  reach  v.  Mehan,  2  16. 
French  v.  Patterson,  760. 
French  v.  Pratt,  184. 
French  v.  Rollins,  110,696. 
French  v.  Spe  cer,  727. 
French  v.  Turner,  330. 
French  v.  Stui  divant,  303,  305. 
Frew  v.  Clark,  878. 
Friedley  v.  Hamilton,  339,  305. 
Frink  v.  Branch,  310. 
Frink  v.  Darst,  730. 
Frink  v.  Hampden  Ins.  Co.,  327. 
Frink  v.  Leroy,  322,  326. 
Frisbie  v.  "Whitney,  747. 
Frische  v.  Cramer,  822. 
Frith  v.  Baldwin,  851. 
Frost  v.  Beeckman,  338. 
Frost  v.  Deering,  794,  805. 
Frost  v.  Peacock,  117. 
Frost  v.  Spaulding,  839. 
Frosts.  Shaw,  331. 
Frothingham  v.  McKusick,  82,  351. 
Fry's  Will,  877. 
Frye  v.  Bank  of  Illinois,  342. 
Fugate  v.  Pina,  695. 
Fuhr  v.  Dean,  600,  652. 
Fullam  v.  Stearns,  5. 
Fuller,  Ex  parte,  881. 
Fuller  v.  Chamier,  434. 
Fuller  v.  Hodgdon,  326. 
Fuller  v.  Ruby,  194,  196. 
Fuller  v.  Swett,  199. 
Fulton  v.  Stuart,  182. 


Ful wood's  Case,  800. 

Funk  v.  Creswell, 

Funk  I-.  Eggleston,  640. 

Funk  v.  Kincaid,  199. 

Funk  c.  .M  130,  :^70. 

Funk  v.  Voneida,  852. 

Funkhouser  v.  Langkopf, 

Funk's  Leasee  v.  Kincaid,  199. 

Furbush  v.  Gteodwin,  ;33. 

Furbush  v.  Sears,  81L 

Furlong  o.  Leery,  214. 

Furman  v.  Fisher,  508. 

Furness  v.  Fox,  401. 

Furness  v.  Williams,  ^51. 

Fusselman  v.  Worthington,  200,  213. 

G. 

Gaerrer>  r.  B.iilleno,  501. 

Gadberry  v.  Sheppard,  273,  274,  375, 

863. 
Gaffield  v,  Hapgood,  6, 
Gage  c.  Brewster,  859,  362. 
Gage  v.  Gage,  663,  875. 
Gage  t\  Smith,  715. 
Gage  v.  Stafford,  300. 
Gage  v.  Ward,  123,  124. 
Gains  v.  Gains,  887. 
Gains  v.  Walker,  359. 
Galbraith  v.  Gedge,  252. 
Gale  v.  Coburn,  777. 
Gale  o.Edwards,  192. 
Galec.  Nix  in,  185,  '646. 
Gale  v.  Ward,  5. 
Galland  v.  Jackman,  790. 
Gallego  v.  Atty.  Gen,  884. 
Callier  v.  Moss,  320,  462. 
Gallipot  v.  Manlove,  746. 
Galloway  v.  Finley,  756. 
Galpin  v.  Paige,  758. 
Gait  v.  Galloway,  746. 
Gait  v.  Jackson,  806. 
Galveston  v.  Menard,  834. 
Galveston  R.  R.  v.  Cowdrey,  312. 
Games  v.  States,  760,  79S. 
Gammon  v,  Freeman,  122. 
Gann  v.  Chester,  295. 
Gannon  v.  Hagadon,  615. 
Gardiner  v.  Dering,  69. 


xliv 


TABLE    OF    CASES    CITED. 


Gardiner  ».  Miles,  130. 
Gardiner  v.  Miller,  71"-. 
Gardiner  Mfg.  Co.  v.  Heald,  10. 
Gardners.  Astor,  821. 
Gardner  v.  Gardner.  489,  612,  805 
Gardner  v.  Gooch, 
Gardiner  v.  Greene,  116,  388. 
Gardiner  v.  Beartt,  851. 
Gardiner  v.  James,  886. 
Gardin.T  0.  Cettletas,  174. 
Gardiner  v. 

Gardiner  v.  Ogden,  501. 
Garfield  v.  Hatmakei 
Garland  v.  Cm\v,  66,  1  16. 
Garland  v.  Richeson,  330. 
Garnans  o.  Watt, 
Garner  v.  Garner,  I  16. 
Garner  v.  Jones  -  10. 
<  tarnsey  r.  Ifund  j ,  1  16. 
Garnsey  0.  Rogers, 
Garrard  0.  Tuck,  216. 
Garraud,  Estate  <<u  i 
Garrison  0,  Sanford,  - 
Garrett  v.  Che-. 
Garrett  0.  Jackson,  699. 
Garrett  0.  Bfoss,  7'."4. 
Garrett  0.  Rackett,  832,  B60. 
Garrett  e.  White,  760. 
Garritt  p.  Sharp,  60  », 
Garson  v.  Green,  292. 
Gartside  v.  Outlej .  82  L 
Gascoigne  d.  Thwing,  500. 
Gassett  c.  Grout,  802. 
Gates  v.  Adams,  871. 
Gates  0.  Green,  194. 
Gatenby  v.  Morgan,  544. 
Gault  d,  BioGrath,  886. 
Gause  v.  Chester,  292. 
Gavin  v.  Sherman,  760. 
Gavit  v.  Chambers,  835. 
Gayford  t>.  Nicholls,  618. 
Gayle  0.  Price,  122. 
(Jaylord's  Appeal,  877. 
Gaylord  0.  Dodge,  115. 
Gear  0.  Burnham,  -. 
Gee  0.  Gee,  500. 
Geo  0.  Young,  70. 
Geer  r.  Hamblin,  1 15.  383,  896. 


'  Geiss  0.  Odenheimer,  812. 

Genter  v.  Morrison,  810. 

ither  0.  Fuller,  7 

3  iule,  61L 

. 
G 

Georg' 

Detmold,   81, 

.  716. 

866,  357. 

1 1 

Gibbons  r.  Dilli  1 

I 

Gibbs 

G 

-10. 
Giber'. 

:.  334, 

Gibson  108. 

600,  507. 

G  ■  .'son,  1:27. 

Gibson  0. .' 

1  .  ..7  1. 

Gibson  0.  M 

Gibson  0.  S 

Gibson  p. Zimmerman, 
Gibson  r.  I  S01. 

Giddings  r.  Seei 
Gilbert  v.  Anthony.  7 

Gilbert  0.  Bulkier,  741. 
Gilbert  v.  Dyneley,  8 
Gilbert  0.  Gilbert,  878. 

Gilbert  r.  Knox,  877. 
Gilbert  0.  >\  A.  Ins.  Co.,  816. 

Gilbert  ».Penn,  812. 

Gilbert  r.  Peteler.  B17, 

Gilbert  0.  Witty,  40». 


TABLE    OF    CA8E8    «  l  I  ED. 


xlv 


Gilbert  p.  Wiman,  862. 

Gilbertsmi  ,-.  Richards,  462. 

Gilchrist  v.  Stevenson,  510. 

Giles  v.  Baremore,  326,  358. 

Giles  v.  Elsworth,  199. 

Giles  v.  Pratt,  824. 

Giles  v.  Siinonds,  653,  799. 

Gill  v.  Logan,  503. 

Gillan  v.  Hutchinson,  758. 

Gill's  Will,  878. 

Gillespie  v.  Jones,  698. 

Gillespie  r.  Miller,  646. 

Gillespie  v.  Somerville,  117. 

Gillespie  v.  Uhomas,  195. 

Gillette.  Balcom,  358. 

Gillham  v.  Mustin,  875. 

Gillis  o.  Brown,  116. 

Gil  lis  v.  Harris,  875. 

Gillis  v.  Martin,  305,  306,  307,  355. 

Gilman  v.  Brown, 292,  294. 

Gilman  v.  111.  &  Miss.  Tel.  Co.,   324. 

Gilman  v.  Moody,  310. 

Gilman  v.  Morrill,  241. 

Gilman  v.  Wills,  325. 

Gilmer  v.  Limepoint,  753. 

Gilpin  v.  Hollingsworth,  241,  244. 

Gilson  v.  Gilson,  302,  305. 

Giraud  v.  Hughes,  686. 

Givan  v.  Doe,  329,  776. 

Givan  v.  Tout,  329. 

Givens  v.  McCalmont,  74,  325. 

Glascock  v.  Roberts,  216. 

Glass  v.  Ellison,  318. 

Glass  v.  Hulbert,  307. 

Glass  v.  Hulbert,  827. 

Gleespier's  Will,  881. 

Glenn  v.  Bank  of  X.  S.,  127 

Glidden  v.  Burnett,  5. 

Glidden  v.  Blodgett  399. 

Glidden  v.  Strupler,  726. 

Gliscon  v.  Hill,  307. 

Glover  v.  Payn,  310. 

Glover  v.  Powell,  835. 

Godard  v.  S.  C.  Railroad,  214,  218. 

Godard  v.  Chase,  6,  757. 

Goddard  v.  Brown,  513. 

Goddard  v.  Pomeroy,  884. 

Goddard  v.  Sawyer,  328. 


Goddard  v.  Goddard, 
Goddard'a  Case,  812. 
Godfrey  v.  Humphrey,  '■'>!■ 
Goewey  r.  I  700. 

Going  v.  Emery, 
Golding  v.  Golding,  81 
Goldsmid  v.  Tunbridgewells,  617. 
■z  v.  Tradesman's  Bank,  606. 
Gooch  v.  Alkins,  115. 
Good  v.  Coombs,  -■  ". 
Good  t  ,751. 

Goodale  v.  Tuttle,  616. 
Goodall  v.  McLean, 
Goodall  v.  tfopley,  860. 

■  urn  r.  Stevens,  li<j,  14-;,  :i74. 
Goodere  ».  L 
Goodlet  o.  Smithson,  746. 
Goodman  r.  Beacham,  730. 
Goodman  v.  Gin.  &  C.  0.   R.  R.,  368. 
Goodman  r.  Han.  &  St.  Jo.  l;.  R.,  2. 
Goodman  v.  White,  332,  334,  359,  361. 
Goodrich  v.  Jones,  2,  5,  799. 
Goodrich  v.  Lambert,  433. 
Goodrich  v.  Staples,   359. 
Goodright  v.  Cator,  277,  661. 
Goodright  v.  Cordwent,  219. 
Goodright  v.  Cornish,  530,  533,  536. 
Goodright  v.  Dunnham,  415,  417,  537# 
Goodright  v.  Straphan,  794. 
Goodrum  v.  Goodrum,  92. 
Goodsell  v.  Sullivan,  818. 
Goodspeed  r.  Fuller,  801. 
Goodtitle  v.  Billington.  418,  482,  419. 
Goodtitle  v.  Holdfast,  279. 
Goodtitle  v.  Kibbe,  834. 
Goodtitle  v.  Otway,  564. 
Goodtitle  v.  Tombs,  171. 
Goodtitle  v.  Whitby,  401. 
Goodwin  v.  Gilbert,  185,  310,  616. 
Goodwin  v.  Goodwin,  116. 
Goodwin  v.  Richardson,  252,  253,  322» 

326. 
Gordon  v.  Bell,  292. 
Gordon  v.  George,  190. 
Gordon  v.  Haywood,  794. 
Gordon  v.  Hobart,  325. 
Gordon  v.  Ins.  Co.,  327. 


xlvi 


TABLE    OF 


Gordon  v.  Jackson,  hZ'v 
Gordon  v.  Lewis,  882 
Gordon  v.  Overton,  563. 
Gordon  ».  Sizer,  '  10. 

Gordon  v.  Ware  Barings  Bank, 
Gordon  v.  "Whieldon,  251. 
G  ire  v.  Brazier,  135. 
Gore*.  Gore,  482,  630,  686. 

.  Jennison,  361. 
Gorham  v.  Arnold,  322. 
Gorham  v.  Daniels,  4 
Gorin  v.  Gordon,  560,  "'74. 
Goring  v.  Slirev-. 
Goss  v.  Singleton,  510. 
Gothard  o.  Plynn,  290. 
Gottr.  i         ,468,  494. 
<;  at  v.  Gandy, 
Gott  v.  To  we'll,  i 
Gouchenour  •.  Mowry,  731. 
< roudy  p.  <  l-oud   . 
Gouhenanl  p.  t '  ckrell,  168. 
Gould  ».B<  .'14. 

Gould  r.  Lamb, 
Gould  p.  1. 
Goul.l  p.  ' 
Gould  d.  Marsh, 
Gould  /•.  Newman, 
Gould  p.  School  District,  172. 
Gould  D.Thompson,  216,  216. 
Goulding  p.  Bun  886. 

Gourley  u.  Wbodburj 
p.  Phila.  E»ch. 
( lowen  p.  Shaw,  2  12. 
Grabill  p.  Hair. 
Graff  v.  Pitch,  7i>9. 
Grafton  Bank  <•.  Poster, 
« S-ragg  p.  Richai  d 
Graham  p.  Anderson,  810. 
Graham  i  161. 

Graham  p.  Carter. 
Graham  p.  Crockett,  160. 
Graham  r.  1  Davidson,  613. 
Graham  p.  Houghtalii  g,  102. 
•  Iraham  v.  Graham,  *s77. 
traham  ,.  MoCampbell,  2 
Graham  p.  New  ma  ,. 
Graham  p.  O'Fallon,  - 
Graham  p.  Way,  182. 


GranW-v  )\  Granberrv. 
r, 

! 

.    41. 
■ 

t. 
Grant  717 

Grant  r.  Wbitwe  :.  646. 

Grapei 

Graf  '">,  361. 

i  ■ 

< 

71. 

1 
i  I 

< 

Gray  p.  Horn 

i . 

G  668. 

< ,  n  d.  Churel 

781. 

Western,  -,  850. 

Greeley  p.  Blaine  Gent.  R.  R.,  615. 
Green  p.Armatroi 
Green  p.  Arnold,  S 
Green  p.  B 

110. 
G 

n  r.  Cro< 

Greei  .296. 

p.Dennis, 


Green 


TABLE    OF    I  A.SE8    '  11  ED. 


xlvii 


Green  v.  Hart,  801, 
Green  v.  Ilunt,  319,  829. 
Green  v.  Hewitt,  419. 
Green  v.  Liter,  106,  895. 
Groen  v.  Marble,  882. 
Green  v.  Massie,  668. 
Green  v.  Putnam,  10,  116. 
Green  v.  Pettingell,  277. 
Green  v.  Ramage,  371. 
Green  v.  Sutter,  66 1. 
Green  v.  Tanner,  841. 
Green  v.  Tenntint,  185,  143. 
Green  v.  Thomas,  B01. 
Green  v.  Turner,  332,  326. 
Green  v.  Wescott,  355,  356. 
Green  v.  Yarnall,  813. 
Green's  Estate,  74  1. 
Green  away  .  182. 

Greene  v.  Cole,  77. 
Greene  v.  Oreighton,  603,  852. 
Greene  v.  Dennis,  885. 
Greene  v.  Munson,  199,  200. 
Greenleaf  v.  Birth,  843. 
Greenleaf  v.  Eden,  339. 
Greenleaf  v.  Francis,  615. 
Greenough  v.  Turner,  163. 
Greenough  v.  Welles,  563,  566. 
Greenvault  v.  Davis,  855. 
Greenwood  v.  Wakeford,  510. 
Gregg  v.  Blaekmore,  739. 
Gregg  v.  Currier,  5'53. 
Gregory  v.  Cowgill,  562,  564. 
Gregory  v.  Pierce,  794. 
Gregory  v.  Savage,  321,  329. 
Gregory  v.  "Walker,  814.    . 
Greeder's  Appeal,  197. 
Gresham  v.  Webb,  795. 
Grice  v.  Scarborough,  852. 
Gridley  v.  Watson,  501,  802. 
Gridley  v.  Wynant,  806. 
Griffin  v.  Bixby,  9. 
Griffin  v.  Blanchor,  501. 
Griffin  v.  Lovell,  333. 
Griffin  v.  Reeee,  115. 
Griffin  v.  Sheffield,  226. 
Griffith  v.  Deerfelt,  746. 
Griffith  v.  Griffith,  92,  877. 
Griffith  v.  Pownall,  544,  575 


Griffithes  v.  IVnson,  829. 
niith,  122,  124. 
■  by  v.  Hair,  295. 

Grignon  v.  Astor,  7 1". 
Grimes  v.  Harmon,  *83. 
Grinvs  p.  Kimball,  836. 
Grimes    .  Bagland,  I 

low,  766. 
Griswold  o.  Butler,  ~ 
Griswold  '•.  Greer,  542. 
Griswold  o.  Johnson,  238, 
Griswold  v.  Messinger 

B 1 0. 
Gross'  Estate,  E 
Grosvenor    v.     Atlantic     Ins.     Co., 

327. 

-  v.  Townsend,  65,  104,  400,  770, 

801. 

-   •.  Flye,  333. 
Grover  c.  Thacher,  821. 
Grube  r.  Wells,  699. 
Grumble  r.  Jones,  542. 
Grumley  p.  Grumley,  501 
Guernsey  v.  Guernsey , 
Guerrant  v.  Anderson,  816. 
Guest  v.  Farley,  459,  I 
Guest  v.  Opdyke,  261. 
Guild  v.  Richard,  277,  278. 
Guild  v.  Rogers,  646. 
Guion  v.  Anderson,  65,  108. 
Guitar  v.  Gordoii. 
Gulliver  v.  Wickett,  537. 
Gully  v.  Ray,  124,  126. 
Gunn  «;.  Barron,  513. 
Gunn  v.  Barry,  162. 
Gunnison  v.  Twichell,  115. 
Gunter  v.  Gunter,  878. 
Guphill  v.  Isbell,  514. 
Guthrie  v.  Gardner,  500. 
Guthrie  v.  Jones,  6. 
Guthrie  v.  Kahle,  325. 
Guthrie  v.  Owen,  131. 
Guthrie  v.  Sorrell,  352. 
Guy  v.  Brown,  602. 
Guy  v.  DeUpsey,  337. 
Gwathmeys  v.  Ragland,  330. 
Gwynn  v*  Jones,  226. 
Gwynne  v.  City  of  Cincinnati.  132. 


xlviii 


TABLE    OF    CASES    CITED. 


H. 

Habergham  v.  Vincent,  567. 
Hackett  v.  Reynolds,  290. 
Hackett  v.  Snow,  324. 
Hadley  v.  Pickett,  294. 
Hadlockr.  Bulfinch, 
Hadlockr.  Iladlock,  812. 
Haflick  v.  Stober,  7. 
Hafner  v.  Irwin,  Ml. 
Hagan  v.  Campbell,  711 
Hagan  v.  Parsons,  810. 
Hagar  r.  15min.nl,  861 
Haggerston  v.  Ilanburv,  7- J. 
Hagthorpv.  Hook 
Haigh,  Ex  part.',  288. 

Haines  p.  Bench 

Haines  v.  Thompson,  804,  305,  306, 

310. 
Haldeman  p.  Haldema   ,642. 
Hale  >:  Glidden, 
Haley.  Jewell, 
Hale  o.  Marsh,  • 
Hale  o.  Mumii,  122. 
i  [ale  •.  1 '.  ui  ii  in.:-.  1  It"). 
Hale  c  Rider, 
Hall  ».  Ashby,  781. 
Hall  v.  Bliss,  81 
Hall  p.  Burj  ess,  218, 
Hall  v.  Bragg,  *~~>. 
Hall  p.  Carter,  518. 
Hall   p.  Chaffee,  630,  538,  542,   644, 

876. 
Hall  v.  Chaffers,  653. 
Hall  v.  Davis,  727. 
Hallw.  Dean,  862. 
Hall*.  Dewey,  199. 
Hall  p.  Gale,  851. 
Hall  v.  Hall,  617,  148,  359,  517. 
Hull  v.  Harris,  815. 
Hull  v.  Lance,  318. 
Hall  v.  Leonard,  7'.)7. 
Hall  P.  Lawrence,  698. 

Hall  v.  Mayhew,  B80. 
Hall  !-.  McCaughey,  (>05. 
Hall  t>.  McDuff,  290,  741. 
Hall  r.  Nute,  401. 
Hall  v.  Orvis,  728. 


Hall  r.  Priest,  308,  404,  536,  538,  .543, 

644. 
Hall  v.  Robinson,  530. 

b.  8avill,  a 

Hall  r.  B 
Hall  r.  S 

0.  Tufu,  275.  310. 
Hall  >-.  Ton 
Hall  p.  Tunnell,  818, 
Hall  p.  Wadsworth,  214. 

Weet  Tr-i  nspo rtation  Co.,  216, 
Hall  l"|7. 

:: 

Hallen  Bll. 

! :  .vl.-v,  837. 

Hallett  r.  Collins,  II. 

■:  v.  Thompson,  603. 
Hallett  194, 

;09 

a       .  .  - 

lion  ' .  II         : 

Hon 

Hamert  :.  -if.  211 

lliii.. 

Hamilton 

Hamilton 

Hamilton  p.  Doolittle,  781. 

Hamilton  p.  El  277. 

Hamilton    . 

H  imilton  p.  Lubukee, 

Hamilton  r.  Nil!-.. 
Hamilton  p.  White,  610. 
Hamilton  p.  Wright.  18   .   L87. 
Hamit  P.  Lawrence. 
Hamlin  P.  Hamlin,  117. 
Hammingway  r.  Hammingway,  663. 
Hammington  p.  Rudyard, 
Hammer  p.  Hammer.  642. 
Hammond  r.  Alexandi 
Hammond  p.  Hopkins,  804 

Hammond  P.  Lewis. 
Hammond  P.  Steer.  6<'>5. 
Hammond  p.  Ze<  hnei . 
Hampson  p.  Fall,  500. 
Hampton  ».  Hodges,  351. 


TA1JLK    OF    i    V>l>     <  ITKI). 


xlix 


Hampton  v.  Levy,  3:!9. 
Hampton  v.  Nicholson,  336. 
Hanchetv.  Whitney,  218. 
Hancock  v.  Beverly,  817. 
Hancock  v.  Butler,  488. 
Hancock  t>.  Carlton,  279. 
Hancock  v.  Hancock,  321,  369. 
Hand  v.  Armstrong,  854. 
Hand  v.  Marcy  885. 
Hanford  v.  McNair,  805. 
Hamia  v.  Peake,  879.  • 

Hanna  v.  Penfro,  606. 
Hannah  v.  Oarrington,  301,  308. 
Hannah  v.  B warner,  812. 
Hannan  v.  Osborn,  244,  638. 
Hannum  v.  West  Chester,  827. 
Hanrahan  v.  O'Reilly,  6,  724. 
Hans  v.  Palmer,  878. 
Hansard  v.  Hardy,  326. 
Hanson  v.  Campbell,  837. 
Hanson  v.  McCue,  616. 
Hapgood  v.  Brown,  842. 
Hardenburg  v.  Larkin,  806. 
Harder  p.  Harder,  74,  77,  81. 
Harding  v.  Glyn,  506. 
Harding  v.  Mill  River  Co.,  358. 
Harding  v.  Springer,  245. 
Harding  v.  Tibbils,  700. 
Harding  v.  Townshend,  327. 
Hardisty  ■«.  Glenn,  696. 
Hardy,  Ex  parte,  290. 
Hardy  v.  Nelson,  861. 
Hardy  v.  Van  Harlingen,  469. 
Hare  v.  Van  Deusen,  294. 
Hargadine  v.  Palte,  888. 
Hargrave  v.  King,  182,  183. 
Haring  v.  Van  Houten,  832. 
Harker  v.  Forsyth,  361. 
Harlan  v.  Seaton,  817. 
Harlan  v.  Smith,  361. 
Harlow  v.  Thomas,  332. 
Harman  v.  Gartman,  242. 
Harvey  v.  Morton,  728. 
Harpending  v.  Dutch  Church,  254. 
Harper  v.  Archer,  673. 
Harper  v.  Barsh,  816. 
Harper  v.  Ely,  322,  325,  355,  358. 
Harper  v.  Hampton,  805. 


Harper  v.  Little, 

Harper  v.  Perry,  hoi. 

Harper  v.  Phelps,  500,  506. 

Harper  v.  Tnple;. . 

Harper's  Appeal,  353,  355. 

Harriman  v.  Gray,  127. 

Harris  v.  Barnes,  530.  533,  536. 

Harris  v.  Barnett,  498. 

Harris  v.  Burdock,  7!»4. 

Harris  v.  Burton,  810. 

Harris  v.  Carson,  71. 

Harris  v.  Elliott,  837. 

Harris  v.  Prink,  71,  201,  216. 

Harris  v.  Gillingham,  ■ 

Harris  v.  Knapp,  562. 

Harris  p.  McElroy,  514,  515. 

Harris  o.  MeKissack,  746. 

Harris  v.  Miles,  326. 

Harris  v.  Norton,  339. 

Harris  v.  Rucker,  508. 

Harris  v.  Riding,  10,  618 

Harris  v.  Smith,  542. 

Harris  d.  Thomas,  81. 

Harris'  Exo'rs  v.  Barnett,  606. 

Harrison  v.  Blackburn,  174. 

Harrison  v.  Burgess,  879. 

Harrison  v.  Good,  603. 

Harrison  v.  Gray,  728. 

Harrison  v.  Harrison,  506. 

Harrison  v.  Lemon,  305. 

Harrison  v.  Middleton,  213,  214,  215. 

Harrison  v.  Phillips  Academy,  304, 

812. 
Harrison  v.  Trustees,  303,  305,  309. 
Harrison  v.  Wood,  115. 
Harrison  v.  Wyse,  325,  353. 
Harrold  v.  Simonds,  818. 
Hart  v.  Chalker,  310. 
Hart  v.  Thompson,  538. 
Hartley  v.  Frosh,  810. 
Hartley  &  Minor's  Appeal,  563,  566. 
Hartley  v.  Harrison,  331. 
Hartman  v.  Kendal,  793. 
Harton  v.  Harton,  469. 
Hartshorn  v.  Day,  811. 
Hartshorn  v.  Hubbard,  323. 
Hartshorne  v.  Hartshorne,  128,  138. 
Hartwell  v.  Blocker,  360. 


] 


TABLE    OF    CASES    CITEP. 


Harvey  v.  Chouteau,  877,  890. 

Harvey  v.  Mitchell,  816. 

Harvey  v.  Sullen-. 

Harvey  v.  Wickham,  106,  108. 

Harvie  v.  Bunks,  355. 

Harvy  v.  Aston,  274. 

Haskell  v.  Bailey. 

II         11  v.  House,  503. 

II     L.  11  o.  New  Bedford,  753. 

Haskell  r.  Putnam,  1 

Haskins  v.  Hawks, 

Haskins  i .  Spiljer,  678. 

216. 
II  ,G1<  nn,  71. 

II     tings*.  Clifford,  I  K 
II  116. 

Bastings  r.< 
Hastings  v.  Dickinson,  147. 

Hi-  .  Hastings,  - 

Eastings      Bl  .117. 

II  )01. 

Batch  r.  Bates,  794,  B12. 
Hatch  v.  Dwight, 
Hutch  o.  II 
Hatch  v.  Kimbal 
Hatch  r.  Palmer,  117. 

;  r.  Vermont  Central  \l  EL 
Hatchell  o.  Kinbrougl  .  201. 
Hatcher  v.  And' 
Hatfield  ».  Sneden,  60,  104,  12  ■ 

632,  794. 
Hathawaj  v.  Evans,  B81. 
Hathawav  v.  Juneau, 
Hathaway  ».  Paj  •  • .  816. 
Hathorn  v.  Lyon,  103. 
Bathorn  p.  Stins 
Bathorne  v.  1 1  tines, 
11  it  state.  Packard,  2  IS. 
Hansen  v.  Lash. 

Baven  v.  Adams, 
Haven  t>.  Foster,  874,  S 
n   -  it  r.  Wakefield,  179, 
Havens  r.  Van  Pen  Burgh,  888. 
Haverstick  o.  Sipe,  ! 
Hawea  0.  Humphrey . 
Hawk  r.  Benseman,  I 
Bawkea  0.  Habbai  k,  I 


Hawkins  r.  Barney,  686. 
Hawkins  v.  Clermont,  312. 
Hawkins  r.  Kemj 
Hawkins  r. 

Hawkins  r.  Bkegg,   71. 
Hawks  r.  Pike,  - 

tad,  120.  318,  367. 
Hawley  v.  City  o: 

I 
ampton,  52,  63- 
Haztui 

Hay     .  (  -  I  18. 

117.  418. 

■   . 

- 

:  I  : 

\ 

.. 

606. 

.  B  iu  . 
Baynes    .  Jacks 

.  5 

1 1. 
Baynes 

II  .;.  -  r.  As&ew, 
Bays*.  D 

Bays  - .  1  • 

Hays  d.  Richardson,  I 

.  Thomas. 
Hay  ward  D.  H    V. 

Bayward  v.  Ormsbee, 
..Thurber, 

ton  v.  Putnam.  • 


TABLE   OF    I  ABES    <  11  ED. 


Hazlett  v.  Powell,  105. 

Head  v.  Egerton,  290. 

Headley  t;  Goundrav,  301 

Healey  v.  Alston,  512. 

Heard  v.  Baird,  308,  514. 

Heard  v.  Fairbanks,  757. 

Heard  v.  Pi  I  lev,  500. 

Hearle  v.  Greenbank,  105. 

Hearst*,  liujol,  507,  510. 

Heath  e.  Crealock,  501. 

Heath  r.  White,  108. 

Heath  v.  Williams  305,  306,  307. 

Heaton  Hodges,  882. 

Hebron  v.  Centre  Harbor,  305. 

Hedge  v.  Drew,  180. 

Heed  v.  Ford,  126,  138,  146,  148. 

Hegerman  v.  McArthur,  198. 

Heise  v.  Heise,  887. 

Heister  v.  Maderia,  300. 

Helms  v.  May,  795. 

Helms  v.  O'Bannon,  818. 

Hemmingway  v.  Scales,  245. 

Hemphill  v.  Giles,  324. 

Hemphill  v.  Tevis,  213. 

Hemphill  v.  Ross,  322. 

Henagan  v.  Harllee,  124,  374. 

Henchliff  v.  Hinman,  812. 

Henderson  v.  Forbudge,  875. 

Henderson  v.  Henderson,  506. 

Henderson  v.  Herrod,  330. 

Henderson  v.  Hunter,  277,  281. 

Henderson  v.  Pilgrim.  305,  329 

Henkle  v.  Allstadt,  371. 

Hennew  v.  Wood,  746. 

Hennesey  v.  Andrews,  305. 

Hennesy  v.  Farrell,  322. 

Hennesey  v.  Walsh,  500. 

Henry  v.  Davis,  302,  308,  310,  312. 

Henry  v.  Tupper,  279,  312. 

Henshaw  v.  Bissell,  726. 

Henshaw  v.  Foster,  875. 

Henshaw  v.  Wells,  322,  332,  324, 

Hepburn  v.  Dubois,  791. 

Hepburne  v.  Hepburne,  513, 

Herberts.  Doussan,  332. 

Herbert  v.  Hansick,  326. 

Herbert  v.  Lavalle,  593. 

Herdman  v.  Bratten,  815. 


Herndon  v.  Kimball,  816. 
Herricb  o.  At  wood,  290. 
Herriek  v.  Babcock,  664. 
Herrich  v.  Malin,  790. 
Herriek  v.  ICoore,  853. 
llMrriiiLr  v.  Pollard,  70l>. 
Herrington  v.  Bradford,  875. 
Herron  v.  Williamson,  126. 
Herschfeldt  v.  George,  802. 
Henkell «.  Buahnell,  201. 
Hertell  v.  Van  Boren, 
Hesseltine  v.  Seavey,  198. 
H'-terr.  Glasgow,  810. 
Hetfield  v.  Central  R.  R,,  053. 
Heth  v.  Cocke,  117,  130,  359. 
Hethingtonr.  Graham,  1--. 
Heuser  v.  Allen,  884. 
Hewitt  v.  Loosemore,  290. 
Hewlins  v.  Shippam,  60,  652. 
Heyer  v.  Pruyn,  310,  320,  359. 
Heyman  v.  Lowell,  359. 
Heyward  v.  Cuthbert,  143. 
Heyward  v.  Mayor,  751. 
Hibbard  v.  Lamb,  511. 
Hibblewhite  v.  McMorine,  789. 
Hickman  v.  Irvine,  74. 
Hickoxr.  Low,  305,  310,  311. 
Hicks  v.  Coleman,  690. 
Hicks  v.  Cram,  725. 
Hicks  v.  Dowling,  182. 
Hicks  v.  Hicks,  305. 
Hidden  v.  Jordan,  355,  500. 
Hide  v.  Thornborough,  618. 
Hiern  v.  Mill,  290. 
Higbee  v.  Rice,  254,  695. 
Higginbotham  v.  Barton,  324. 
Higginbotham  v.  Cornwell,  148. 
Higgins  v.  Breen,  125. 
Higgins  v.  Carlton,  876. 
Hildebrand  v.  Fogle,  827. 
Hildreth  v.  Conant,  213. 
Hill  v.  Barclay,  279. 
Hill  v.  Barge,  877. 
Hill  v.  Baron,  397. 
Hill  v.  Den,  506. 
Hill  v.  Edwards,  304,  305,  329. 
Hill  v.  Elliott,  310. 
Hill  v.  Epley,  725. 


lii 


TABLE    OF    CASES    «  ITED. 


Hill  v.  Hill,  4,  46,  538,  652. 

Hill  ».  Jordan,  213,  824. 

Hill  v.  Josselyn,  513. 

Hill  v.  Lord,  843. 

Hill  v.  Meeker,  817. 

Hill  v.  Meyers,  408. 

Hill  v.  Miller,  746. 

Hill  v.  Moore,  329. 

Hill  o.  McRae, 

Hill  v.  Mowry,  787. 

Hill  w.  Pixley,  321. 

Hill  v.  Roberi-  22. 

Hill  v.  Roderick,  100. 

Hill  v.  Sewell,  1,  5. 

Hill  v.  Smith,  818. 

Hill  /-.  Wen  worth,  4. 

Hill  v.  Woodman,  194. 

Hillary  ».  Hillary,  G 

Hilbournc  r.  Fogg,  190,  212,  214 

Hillhouso  <\  Chester,  I 

Hillhouse  v.  Dunning,  305. 

Hillhouse  o.  Mix,  240. 

Billiard  v.  Binford,  1 18, 

Hilliary  p.  Hilliary's  Lessee 

Hillman  p.  Bouslaugh,  433,  434. 

Hills  v.  Bcnrse,  794 

Hills  p.  Chicago, 

Hills  p.  Elliot,  501. 

Hills  p.  Loomis,  807. 

Hinchcliff  p.  Hinman,  816. 

Hincbman  p.  Stilea,  11'.,  3f>6. 

Hinckley  p.  Baxter,  2. 

Hindi's'  Lessee  o.  Longsworth,  802. 

Hinds  p.  Allen.  868,  861. 

Hinds  p.   Ballon,   117,   124,   337    821, 

329. 
Hine  v.  Bobbins,  sis. 
Hines  v.  Frantham,  240. 
Hines  v.  Robinson,  212. 
Hinkley  P.  Green,  2f>4. 
Hinman  p.  Booth,  815. 
Hinneman  p.  Rosenbeck,  S83. 
Hinsdale  p.  Humphrey,  is."..  646 
Hipp  t>.  Haokett,  824. 
Hise  v.  Finches,  887. 
Hitchcock  v.  Carpenter,  122. 
Hitchcock    v.   Harrington,    117     122. 

143,  318. 


Hitchcock  v.  Merrick,  329. 

Hitchcock  v.  Smith,  671. 

Hitchens  p.  Hitchen*.   116,   146,  385f 

396. 
HitiKT    .  Bge,  107. 
Hitt  <•.  Holliday,  334. 
Hoag  a  H  tag,  199. 
H  W'm     i  ■ 

1!        ken  Land  Co,  v.  Kerrigan,  837. 

Hobson  r.  Trevor,  4-7. 

Hookenburx        S  r,  199 

Hockley  ».  liawbey, 

Hocker  >•    !  I 

i<' 

Hodg  99. 

B  Sbteldi 

Mar.  A  F.  Ins.  Co., 

Hodgb  nor,  615. 

D  r.  Treat, 
li  .  Dei  eat,  Mt, 

Hoffman  a  Anthony, 

: 

. 
I 

Hoffman  a  P 
Hoffmi 

imberland,  601 
Hoffsfe 

.  Calvert,  M 
Hogan  p  i.  812. 

Hogan  a  1' 
Hogan  p.  Jaqnei 

S 
Hogan  d.  Btayborn,  499 
Hoge  r.  Hoge, 
H.'^.'l  r.  Lindelh 

M 
Hoit  a  Russell, 
Holahird  a  Hurr. 
Ho  1  brook  r.  Hotton.  812. 
Holbrook  a  Chamberlain,  6. 
Holbrook  a  Dtekereon, 
11. ''brook  a  Finney, 
Holbrook  a  Tirroll,  741. 


TABLE    OF    CASES    CITED. 


liii 


Holbrook  v.  Young,  212.  . 

Holcomb  v.  Coryell,  'J.U.. 

Holcomb  v.  Holcomb,  359,  361. 

Holcomb  v.  Lake,  542. 

Holcraft  v.  King,  Oil. 

Holden  v.  Pike,  321. 

Holden  v.  Pinney,  168. 

Holden  v.  Stickney,  368. 

Holder  v  Coates,  9. 

Holderby  v.  Walker,  533. 

Holeman  v.  Boiling  Spring  Co.,  614. 

Holford  v.  Hatch,  182. 

Holloday  v.  Daily.  806. 

Hollett  v.  Pope,  542. 

Holley  v.  Hawley,  693,  700. 

Hollis  i>.  Pool,  227. 

Holloman  v.  Hoi  Ionian,  134. 

Holley  v.  Brown,  218. 

Holman  v.  Bailey,  333. 

Hohnan  v.  Creagmiles,  853. 

Holman  v.  Hopkins,  873. 

Holmes  v.  Caghill,  576. 

Holmes  v.  Fisher,  312. 

Holmes  t>.  Grant,  304,  305,  306,  310. 

Holmes  v.  McGinty,  330. 

Holmes  v.  Railroad,  739. 

Holmes  v.  Seeley,  608. 

Holmes  v.  Tremper,  6. 

Holmes?;.  Trout,  741. 

Holms  v.  Seller,  600. 

Holt  v.  Robertson,  243. 

Hoit  v.  Rees,  333,  357. 

Holt  v.  Sargent,  611. 

Holten  v.  Whitney,  699. 

Home  v.  Richards,  835. 

Home  Life  Ins.  Co.  «.  Sherman,  195. 

Homer  t>.  Homer,  501,  507. 

Hon  v.  Hon,  500. 

Honeywood  v.  Honeywood,  74. 

Honore  v.  Blakewell,  293,  294,  295. 

Honore  v.  Hutchings,  305. 

Hood  v.  Easton,  325. 

Hoagland  v.  Watt,  130. 

Hooker  v.  Hooker,  116. 

Hooker  v.  N.  H.  &  N.  Co.,  753. 

Hooper,  Ex  parte,  288. 

Hooper  v.  Cummings,  277. 

Hoover  v.  Samaritan  Soc.,  565,  568. 


Hojio  v.  Stone,  2%,  727. 
Hopkins  v.  Garrard,  293. 
Hopkins   d.   Hopkins,  462,   463,  465, 

539,  •".!(». 
Hopkins  v.  Lee,  861. 
Qupkini  v.  Myall,  »"*»'•  T . 
Hopkins  v.  Ward,  860. 
Hopkinson  v.  Dumas  500,  501,  512. 
Hopkinson  v.  Bolt,  ■!12. 
Hopper  v.  Hopper,  139. 
Hopper's  Will,  881, 
Hopping  v.  Burnbam,  816. 
Hoppock  c.  Tucker,  885. 
Horn  v.  Kettletas,  307. 
Hornbeck  v.  Westbrook,  798. 
Home  r.  Lyi'th,  495. 
Horner  v.  Leeds,  173,  199. 
Horner  v.  Zimmerman,  361. 
Hornsey  o.  Casey,  148. 
Horseley  v.  G^rth,  818. 
Horsey  v.  Horsey,  273. 
Horsey  v.  Hough. 
Horseford  v.  Wright,  861. 
Horstman  v.  Gerkin,  332. 
Hortbn  v.  Horton,  493,  494. 
Horton  v.  Sledge,  398. 
Hortwitz  v.  Norris,  568. 
Hoskin  v.  Woodward.  5. 
Hoskins  v.  Rhodes,  201. 
Host  v.  Kearney,  190. 
Hotchkiss  v.  Elting,  559. 
Hougan  v.  Milwaukee,  etc.,  R.  R.,615. 
Hough  v.  Bailey,  310,  311,  326. 
Hough  v.  Birge,  216. 
Hough  v.  Osborne,  330. 
Houghton  v.  Hapgood,  105,  373. 
Houghton  v.  Jones,  816. 
House  v.  House,  66,  500. 
House  v.  Jackson,  433. 
Houser  v.  Lamont,  303. 
Houston  v.  Laffee,  653. 
Houston  v.  Markley,  506. 
Houston  v.  Sneed.  720. 
Houston  v.  Stanton,  813. 
Hovey  v .  Hobson,  792. 
Hovell  v.  Barnes,  494. 
How  i>.  Vigures,  299. 
Howard  v.  Ames,  364,  365. 


liv 


TABLE    Of    CASES    CITED. 


Howard  v.  Carpenter,  227. 

Howard  v.  Chase,  339. 

Howard  v.  Davis,  305. 

Howard  v.  Graham,  333. 

Howard  v.  Handy,  859. 

Howard  v.  Harris,  309. 

Howard  v.  Hildreth,  326. 

Howard  ».  How,  833. 

Howard  v.  Houghton,  322. 

Howard  v.  Hudson,  l-~>. 

Howard  v.  Huffman,  711. 

Howard  v.  Merriam,  218. 

Howard  v.  Priest,  262,  253 

Howard  v.  Reedy,  869. 

Howard  p.  Shaw,  216. 

Howard  v.  Wadsworth,  843. 

Howard's  Will,  877. 

Howard  Mutual  L.  Asso.  p.  Mclntyrc, 

810. 
Howe  v.  Adums,  168. 
Howe  v.  Alger, 
Howe  v.  Batchelder,  71,  051. 
Howe  p.  Dewing,  814. 
Eowe  r.  i-v. .  man,  812. 
Howe  v.  Howe, 
Howe  f.  Lewis,  333. 
Howe  c.  Russell,  802. 
Howe  p.  Wilder,  886,  741. 
Howell  c.  Howell  600, 
Howell  v.  Barnes, 
Howell  v.  Price, 
Howell  p.  Saule,  829. 
Howell  p.  Bchenck,  70. 
Howland  v.  Coffin,  182,  186,  190,  192. 
Bowland  v.  Shurtleff,  826. 
Hoxie  u.  Ellis,  115. 
Hoxie  !>.  Hoxie,  198. 
Hoy  c.  Bramhall,  886. 
Hoy  v.  Sterritt,  618. 
Hoy  v.  Master,  664. 
Hoyle  r.  Oazabat,  ■• 
Hoyle  p.  Logaj),  77">. 
Hoyle  p.  Plattsburg,  2,  812. 
Hint  p.  Bradley,  812. 
Iloyt  v.  Hudson,  015. 
Hoy  t  v.  Kimball,  273. 
Hoytv.  Martenae,  812,  334,  360. 
Hoytw.  Swan,  127. 


Hoyt  v.  Thompson,  328. 
Hubbard  p.  Burrell,  501. 
Hubbard  v.  Hubbard,   148,   277,  278, 

312. 
Hubbard  v.  Little,  701. 
Hubbitnl  p.  Norton,  853. 
Hubbard  r.  Savage,  310. 
Hubbard  «.  Shaw,  ?.56. 

HuObard  v.  Town,  602. 
Hubbell  p.  Mon  25,  353. 

Hubbell  9.  Warren,  603. 
ury,  *.oi. 
Hubl  !0. 

■ 
Huff 

II  ill'    .   M  71. 

I!  .•'      m   D  ■  kid,  242 
Hughes  9.  Blackwell,    - 

'1,302,310, 

Hngbei  i,  716. 

Holliday, 
Kt  arne] . 

Hughes  9.  Mont;  . 

Hughes  r.  l'r< '^  ■ .         R»B 

Hugh.-  •.  i; 

Hughes  v.  Bhraflj 

n  igbes    .  w  .  ■    • .  1-7. 

Hughes  9.  Willis 

ies    .  Worlej .  :>10. 
Huie 

Hulburt  9.  Emei  - 
Hulick  9.  Scoril,  746,     17,814 
Hull 

Hull  p.  B<       .1 
Hull    .  l. 
Hull  9.  Vaughn, 
Hulme  9.  Montgomery,  871. 
Humberaton  c  Hum  I   7.  41^. 

Hummer  p.  Schott,  2 
Humphrey  p.  Phinnej . 
Humphries  p.  Brogdei  . 
Humphries  r.  Humphries 
Hunt  P.  Aire. 

Hunt  p.  Bayley,  226, 
Hunt  !•.  Beeton,  27tf. 
Hunt  p.  Danfbrth,  l 


TABLE    OF    CASES    CITED. 


\v 


Hunt  v.  Hall,  81,  400. 

Hunt  v.  Hunt,  321,  329,  326,  361,  512, 

782. 
Hunt  v.  Maynard,  324,  353. 
Hunt  v.  McHenry,  832. 
Hunt  v.  Moore,  500. 
Hunt  v.  Morton,  214,  218. 
Hunt  v.  Rousmaniere,  566,  573,  805. 
Hunt  v.  Stiles,  330,  362. 
Hunt  v.  Thompson,  192. 
Hunt  v.  Wickliff,  747. 
Hunt  v.  Wright,  275. 
Hunter  v.  Martin,  252. 
Hunter  v.  Miller,  805. 
Hunter  v.  Osterhoudt.  278. 
Hunter  v.  Watson,  798. 
Huntington  v.  Cotton,  318. 
Huntington  v.  Havens,  728. 
Huntington  v.  Smith,  329. 
Huntington  v.  Whaley,  699. 
Huntley  v.  Russell,  72,  75,  77,  78. 
Hurd  v.  Case,  364. 
Hurd  v.  Curtis,  843. 
Hurd  v.  Cushing,  60. 
Hurd  v.  Grant,  140. 
Hurd  v.  Robinson,  310. 
Hulburt  v.  Post,  196. 
Hurst  v.  Rodney,  190,  192 
Huss  v.  Stephens,  797. 
Hussey  v.  Blood,  259. 
Huston  v.  Cantril,  802. 
Hutchings  v.  Low,  747. 
Hutchins  v.  Byrnes,  786,  807. 
Hutchins  v.  Carlton,  329. 
Hutchins  v.  Heywood,  503 
Hutchins  r.  Huggins,  827. 
Hutchins  v.  King,  9,  312. 
Hutchins  v.  Moody,  852. 
Hutchins  v.  State  Bank,  566 
Hutchinson's  Appeal,  885. 
Hutchinson  v.  Chase,  242. 
Hutchinson  v.  Tindall,  507. 
Hutchinson  v.  Rust,  816. 
Hutton  v.  Moore,  2)5. 
Hutton  v.  Schumaker,  697. 
Huysen  v.  Chase,  218. 
Hyatt).  Pogsley,#670. 
Hyatt  v.  Wood,  225. 


Hyde  v.  Stone,  242. 
II .  man  v.  Devereux,  330,  863. 
Hyndman  v.  Hyndman,  310,  365. 
Hyden  v.  Hyden,  500. 

I. 

Ide  v.  Ide,  398. 
Idle  v.  Cooke,  47. 
[dley  o.  Bowen,  887. 

Illinois    0.    K.    R.    v.    McCullough, 

815. 
Illinois  Ins.  Co.  v.  Stanton,  327. 
Inches  v.  Leonard.  326,  358. 
[ngallfl  v.  Cook,  853. 
Ingeraoll  v.  Sergeant,  »'■!  1. 
Ingle  v.  Culbertson,  364,  368. 
Ingle  v.  Partridg,  513. 
Inglehart  v.  Crane,  371,  375,  376 
Inglis  v.  Trustees  S.  S.  Harbor,  533. 
Ingoldsby  v.  Juan,  794. 
Ingraham  v.  Baldwin,  199,  213,  79 
Ingrahaui  v.  Disborough,  332. 
Ingraham  v.  Hutchinson,  613 
Ingraham  v.  Fraley,  506. 
Ingraham  v.  Wilkins.  835. 
Ingraham  v.  Wilkinson,  686. 
Ingraham  v.  Wyatt,  879. 
Ingram  v.  Hall,  809. 
Ingram  v.  Little,  789. 
Ingram  v.  Porter,  875. 
Inhabitants,  etc.,  v.  Huntress,  789. 
In  man  v.  Jackson,  563. 
Ireland  c.  Nichols,  191. 
Irvin  v.  Smith,  816. 
Irvine  v.  Irvine,  728,  792. 
Irvine  v.  Marshall,  744. 
Irvine  v.  McKeon,  801. 
Irwin  v.  Cavade,  75. 
Isett  v.  Lucas,  330. 
Isham  v.  Bennington  Co.,  807. 
Israel  v.  Israel,  242,  243. 
Ives  v.  Davenport,  567. 
Ivory  v.  Burns,  507,  803. 
Izard  v.  Bodine,  242. 
Izard  v.  Middleton,  886. 
Izon  v.  Garton,  214. 
Imlay  v.  Huntington,  495. 
lies  v.  Martin,  513. 


lYi 


TABLE    OF    CASES    CITED. 


Jackman  v.  Hallock,  295. 
Jackman  v.  Ringland,  500. 
Jacks  v.  Henderson,  875. 
Jackson  v.  Aldrich,  213. 
Jackson  v.  Alexander,  801. 
Jackson  v.  Allen,  277.  278. 
Jackson  v.  Andrew,  77. 
Jackson  v.  Babcock,  651. 
Jackson  v.  Bard,  812. 
Jackson  v.  Beacli. 
Jackson  v.  Binney,  6 
Jackson  v.  Billingfr,  642. 
Jackson  v.  Klanshan,  532. 
Jackson  v.  Blodget, 
Jackson  v.  Bodle,  180. 
Jackson  v.  Bowen,  BIO,  332. 
Jackson  v.  Bradford,  728,  780,  781. 
Jackson  v.  Bradt,  214,  216,  217. 
Jackson  v.  Brinkerhoff,  7i'7. 
Jackson  v.  Brown,  1 I  7.   11  8. 
Jackson  v.  Brow  .74. 

Jackson  p.  Bryan,  218. 
Jackson  v.  Bull, 
Jackson  p.  Burchin,  ! 
Jackson  v.  Oaldwi  11,  768,  776,  801. 
Jackson  v.  Carey,  1'  1 
Jackson  v.  Oarp 
Jackson  d.  Catlin,  1 17,  800. 
Jackson  v.  Chase.  790. 
Jackson  v.  Churchill,  139. 
Jackson  v.  Clark,  829. 
Jackson  v.  Cleveland,  500. 
Jackson  v.  Chew,  538.  642. 
Jackson  v.  Colden,  810. 
Jackson  v.  Coleman,  6G4. 
Jackson  p.  Collins.  200. 
Jackson  v.  Core 
Jackson  v.  Corliss,  IS 
Jackson  v.  Crofts,  864. 
Jackson  p.  Croy,  767,  511. 
Jackson  v.  Chrysler,  277,  278. 
Jackson  v.  Davis,  18 
Jackson  p.  Defendorf,  8  0> 
Jackson  v.  Delacroix,  178,  17;'. 
Jackson  v.   Delancey,   819,  820.  829, 
324,  398  801. 


Jackson  v.  Denniston.  878 
Jackson  v.  Dewitt,  117. 
Jackson  v.  Deyo,  213. 
Jackson  v.  Diffendorf,  71o. 
Jackson  v.  Dillon,  801. 

D  p.  Dubois,  33'.'. 
Jackson  r.  Dunla] 
Jackson  r.  Dunsbaugh.  48 
Jack-  !|g.  606- 

.' 

._•■  .  K  '. 
Jackaon  p.  Elmendor,  638. 
.' 

in  •-.  Parmer  In*.  Co.,  328. 
Feller,  500. 

.  . 
Jacka 

(iilchrist,  794. 

■  ,:v.  !:.   611. 

■ 

Jack-  .11 

Jacki  811. 

a  v.  Eizon,  144. 

,  Hoffman, 

.  B 
m  p.  Hopkins, 

Jack-  a    .11     .-■•    .     1 

Jackson  p.  11 

Jack-,:.     .  11  ■ 

Jackson  p.  Hum] 

,l:i  kson  p.  Hull. 

Jackson  r.  Jat  8T7. 

Jackson  v.  Jansen,  563. 

Jackson  r.  Johnson,  108,  10S. 

Jackson  p.  Kip.  122,  193. 

Jackson  r.  Kisselbrack, 

Jackson  r.  Langhead.  190. 

Jackson  c.  Leek,  801,  i 

Jacks 

Jackson  o.  Leonard,  714. 

Jackson  p.  Livingston.  "J  1  -  - 

Jackson  p.  Loree, 
Jackaon  p.  Loomia,  I 

Jackson  p.  Maneius,  64,  6c. 


TAKLE    OF    (ASKS    CITED. 


lvii 


Jack9on  v.  Matsdorf,  680,  730. 

Jackson  v.  McCall,  832. 

Jackson  v.  McKenny,  777. 

Jackson  v.  McLeod,  214,  22G. 

Jackson  v.  Merrill,  37. 

Jackson  v.  Miller,  210,  538. 

Jackson  v.  Minkler,  332. 

Jackson  v.  Moore,  607,  674,  700. 

Jackson  v.  Monell,  359. 

Jackson  v.  Morse,  498. 

Jackson  v.  Murray,  727. 

Jackson  v.  Myers,  00,  179,  463,  466. 

Jackson  v.  Newton,  696. 

Jackson  v.  Moble,  544. 

Jackson  v.  O'Donagby,  115. 

Jackson  v.  Ogden,  726. 

Jackson  v.  Osborn,  790. 

Jackson  v.  Parkhurst,  225. 

Jackson  v.  Peck,  728. 

Jackson  v.  Phillips,  644,  809. 

Jackson  v.  Phipps,  812. 

Jackson  v.  Pierce,  215. 

Jackson  v.  Pike,  801. 

Jackson  v.  Reeves,  839. 

Jackson  v.  Richards,  180,  596. 

Jackson  v.  Roberts,  767. 

Jackson  v.  Robins,  398,  564. 

Jackson  v.  Rowland,  l'J9. 

Jackson  i>.  Salmon,  214. 

Jackson  v.  Schauber,  511,  563. 

Jackson  v.  Schoonmaker,  65,  695,  715, 

801. 
Jackson  v.  Sebring,  782. 
Jackson  v.  Sellick,  106. 
Jackson  v.  Sharp,  699. 
Jackson  v.  Sbeldon,  815. 
Jackson  v.  Shepard,  760. 
Jackson  v.  Sill,  883. 
Jackson  v.  Slater,  326. 
Jackson  v.  Spear,  199. 
Jackson  v.  Staats,  638. 
Jackson  v.  Stackhouse,  333. 
Jackson  v.  Stevens,  730. 
Jackson  v.  Sublett,  399. 
Jackson  v.  Swart,  767. 
Jackson  v.  Thompson,  538. 
Jackson  v.  Tabbitts,  73,  77,  259 
Jackson  v.  Thurman,  669. 


Jackson  v.  Tapping,  277. 
Jackson  t>.  Van  Dusen,  876. 
Jackson  v.  Vanderheyden,  115,  757. 
Jackson  v.  Van  Hoesen,  64. 
Jackson  v.  Van  Slyck,  513. 
Jackson  d.  Van  Zandt,  <>-. 
Jackson  v.  Vincent,  199,  200. 
Jackson  v.  Waldron,  728. 
Jackson  v.  AVulkor,  503. 
Jackson  v.  Walsh,  365. 
Jackson  v.  Warford,  697. 
Jackson  v.  Warren,  359. 
Jackson  v.  Wendell,  808. 
Jackson  v.  Wheat,  694,  099. 
Jackson  v.  Wheeler,  200. 
Jackson  v.  Whitbeck,  254. 
Jackson  v.  Wilcox,  746. 
Jackson  c.  AVillard,  301,  318,  329. 
Jackson  v.  Winslow,  858. 
Jackson  v.  Wood,  770,  808. 
Jackson  v.  Woods,  878. 
Jackson  v.  Woodruff,  096. 
Jackson  v.  Wright,  727,  730,  800. 
Jacobs  v.  Allard,  614. 
Jacocks  v.  Gilliam,  730. 
Jacoway  v.  Gault,  810. 
Jaffe  n.  Harteau,  189,  194. 
Jakeway  v.  Barrett,  096. 
Jamaica  Pond  Co.  v.  Chandler,  816. 
James  v.  Allen,  499. 
James  v.  Cowing,  513. 
James  v.  Dean,  213. 
James  v.  James,  292,  885. 
James  v.  Johnson,  340,  305,  329. 
James  v.  Marvin,  890. 
James  v.  Money,  302,  321,  512. 
James  v.  Rice,  289. 
James  v.  Thomas,  309. 
James  v.  Vanderheyden,  815. 
James  v.  Wynford,  544. 
Jameson  v.  Smith,  563. 
Jameson  v.  Millman,  653. 
Jamison  v.  Glascock,  507. 
Jane  v.  Gregory,  815. 
Janes  v.  Jenkins,  602. 
Jaques  v.  Gould,  192. 
Jaques  v.  Methodist  Church,  814. 
Jaques  v.  Weeks,  311. 


Iviii 


TABLE    OF    CASES    CITED. 


.Turvis  v.  Dutcher,  288,  290,  292,  312. 

Jarvis  v.  Kussick,  756. 

Jencka  v.  Alexander,   356,   363,   364, 

500,  566. 
Jenkins  v.  Freyer,  402,  414. 
Jenkins  v.  Frink,  501. 
Jenkins  v.  Hopkins,  853. 
Jenkins  v.  Jenkins,  125,  193. 
Jenkins  v.  Jones,  366. 
Jenkins  v.  Stetson,  312. 
Jenkins  v.  Young,  462,  464. 
Jenkins'  Will,  876. 
Jenks  v.  Ward,  B41. 
Jennor  v.  Hardi<  . 
Jenny  v.  Jennings,  2  14. 
Jenny  v.  Norton,  852. 
Jenny  v.  Ward,  309. 
Jenny  v.  Whitaker,  746. 
Jennison  v.  Iliipgood,  365.  601. 
Jennison  v.  Walker,  605,  617. 
Jenny  v.  Andrews,  576. 
Jenny  p.  Jenny,  126. 
J(  rvis  p.  Bruton,  16. 
J.sseru.  Gitlbrd,  389. 
Jesson  u.  I>< >■•.  1  : 1. 
Jewell  p.  Warner,  52. 
Jewett  r.  Bailey,  807. 
Jewett  v.  Foster,  242. 
Jewett  v.  Jewett,  606. 
Jewett  d.  Miller.  72">. 
Jewett  v.  Whitney,  255. 
Jewett's  Lessee  v.  Stockton,  260. 
Jillson  v.  Wilcox, 
Jobe  v.  O'Brien,  371. 
John  and  Cherry  Streets,  751. 
Johnson  v.  Anderson,  886,  837. 
Johnson  >-.  Baker,  813. 
Johnson  p.  Beauchamp,  216. 
Johnson  v.  Blydenburg,  ;'>12. 
Johnson  p.  Boat  ick,  781. 
Johnson  p.  Brailsford,  887. 
Johnson  p.  Brown,  360. 
Johnson  p.  Camp,  71. 
Johnson  r.  Candage,  829. 
Johnson  v.  Carpenter,  840,  889, 
Johnson  o.  Cawthorn,  292. 
Johnson  r.  Cushing,  576. 
Johnson  v.  Collins,  747. 


Johnson  p.  Conn,  503. 
Johnson  v.  Copeland,  873. 
Johnson  v.  Cornette,  329. 
Johnson  v.  Delamy,  507. 
Johnson  r.  Dougherty,  50L 
Johnson  p.  Elliott.  1 4 » "■ . 
Johnson  r.  El  wood,  7 
Johnson  c.  Farley,  B12. 
Johnson  r.  Gorham,  699. 
Johnson  v.  Gray,  30s,  304. 

Jonnaoi  241,  244. 

John- 

Johnson  r.  Hurt,  261. 

Johnson  v..  I  U8,  419,  88i 

Johnson  r.  .1 

Johnson  p.  .M     -   .  B24. 

Johnson  r.  M    1 1 

Johnson  p.  Mcintosh,  682,  744. 

Johnsoi    -.  M.  K.  Church,  - 

Johnson  r.  Mehaffey,  5. 

Johnson  P.  I  366. 

Johnson  r.  IforreU,  I 

John-  M 

Johnson  p.  Nash,  71  i. 

Johnson  p.  Nyce, 

Johnson  r.  Phil 

J  oh i.-  rlea,  500. 

Johnson  v. 

Johnson  p.  Ronal  I,  607. 

Johnson  p.  Shields,  115. 

Johnson  r.  Sharp,  881. 

Johnson  p.  Simpson,  S 

Johnson  p.  Sherman,  333. 
Johnson  p.  Steven-.  260,  318. 
Johnson  p.  Smith,  307. 
Johnson  v.  Turner,  363. 
Johnson  r.  Valentine,  401. 
Johnson  r.  White,  861. 
Johnson  p.  Williams,  870, 
Johnston  P.  Smith.  1 
Johnston  p.  Vandyke,  135. 
Johnstone «.  Saddleatone,  198,  214. 
Johnstone  v.  Wallace, 

Jones  P.  B 

Jones  v.  Brewer.  116,  184,  136,  137. 

Jones  ■.  Brewington,  I 

Jones  p.  Bush,  403,  812. 


TABLE    OF    CASES    CITED. 


lix 


Jones  v.  Carter,  191,  277,  805. 

Jones  v.  Chilis,  266. 

Jones  v.  Clark,  82  1. 

Jones  v.  Conde,  290,  3G2. 

Jones  v.  Crane,  238. 

Jones  v.  Crow, 

Jones  v.  Davies,  197. 

Jones  v.  Dexter,  601. 

Jones  v.  Doe,  273,  274. 

Jones  v.  Dougherty,  513. 

Jones  v.  Felch,  192. 

Jones  v.  Oilman,  861. 

Jones  v.  Hill,  81. 

Jones  v.  Hacknmn,  699. 

Jones  v.  Hurst,  602. 

Jones  v.  Jones,  135,  216,  292,  877. 

Jones  v.  Kimble,  882. 

Jones  v.  Lapham,  359. 

Jones  v.  Laughton,  434. 

Jones  v.  Lawrence,  358. 

Jones  v.  Maffet,  610. 

Jones  v.  Marable,  604. 

Jones  v.  Marsh,  218. 

Jones  v.  Miller,  542. 

Jones  v.  Monroe,  795. 

Jones  v.  Myrick,  371. 

Jones  v.  Patterson,  90,  140. 

Jones  v.  Percival,  610. 

Jones  v.  Perry,  752. 

Jones  v.  Reeder,  501. 

Jones  v.  Roe,  277,  386,  487,  530. 

Jones  v.  Say  ifc  Seal,  468. 

Jones  v.  Sherrard,  66,  373. 

Jones  v.  Shewmake,  890. 

Jones  v.  Sothoran,  542. 

Jones  v.  Soulard,  686. 

Jones  v.  Taylor,  756. 

Jones  v.  Thomas,  71. 

Jones  v.  Todd,  127. 

Jones  v.  Wagner  618. 

Jones  v.  Walker,  273. 

Jones  v.  Weathersbee,  254. 

Jones  v.  Whitehead,  76. 

Jones  v.  Winwood,  561. 

Jones  v.  Wood,  569. 

Jones  v.  Zanes'  Trustees,  503. 

Jordan  v.  Fenno,  307. 

Jordan  v.  Furlong,  336. 


Jordan  v.  Staples,  201. 
Jordan  v.  Smith,  335. 
Jordan  v.  Stevens,  790. 
Joslin  v.  Wyman,  341,  336. 
Joyce  v.  Williams,  726. 
Judd  v.  Seekine,  321. 
Judges,  Opinion  of,  759. 
Judges,  Report  of,  770. 
Judson  v.  Gibson,  510. 
Judy  v.  Williams,  883. 
Jumel  v.  Jumel,  370,  371. 


Kabley  v.  Worcester  Gas  Co.,  179. 
Kahn  v.  Gumbert,  501. 
Kane  v.  Vandenburgh,  81. 
Kannady  p.  MoCarron,  322. 
Karmiller  o.  Kratz,  828. 
Karnes  v.  Lloyd,  322. 
Kauffeltr.  Bower,  292. 
Kay  i'.  Scates,  644. 
Kay  v.  Penn.  R.  R.,  054. 
Kean  v.  HofTecker,  530. 
Kean».  Roe,  8-". 
Kearney  v.  McComb,  305,  806. 
Kearney  v.  Taylor,  755. 
Kearsing  v.  Kilian,  741. 
Keats  v.  Hugo,  602. 
Keating  v.  Condon,  184. 
Keating  v.  Reynolds,  542. 
Keay  v.  Goodwin,  192,  255. 
Keech  v.  Sandford,  501. 
Keeler  v.  Eastman,  73,  74,  76. 
Keeler  v.  Tatnell,  127. 
Keeler  v.  Wood,  843. 
Keen's  Appeal,  755. 
Kersel  v.  Earnest,  243. 
Keith  v.  Horner,  292,  295. 
Keith  v.  Swan,  361. 
Keith  v.  Trapeer,  120. 
Keller  v.  Michael,  115. 
Keller  v.  Sinton,  310. 
Kelleran  v.  Brown,  304,  307. 
Kelley  v.  Jenness,  500. 
Kelley  v.  Johnson,  500. 
Kelley  v.  Weston,  201. 
Kellogg,  Ex  parte,  761. 
Kellogg  v.  Ames,  337. 


]x 


TABLE    OF    CASES    CITF' 


Kellogg  p.  Frazier,  310. 

Kellogg  v.  McLaughlin,  760 

Kellogg  v.  Malin,  853. 

Kellogg  v.  Mullen,  698. 

Kellogg  v.  Piatt,  855. 

Kellogg  v.  Rockwell,  325. 

Kellogg  v.  Smith. 

Kellum  v.  Smith,  500. 

Kelly  v.  Baker,   161. 

Kelly  v.  Bryan,  807. 

Kelly  v.  Kelly,  883. 

Kelly  v.  Miller,  878. 

Kelly  v.  McGuirc,  070 

Kelly  v.  Mills,  889. 

Kelly  v.  Payne  ', 

Kelly  v.  Thompson,  304,  305. 

Kelly  v.  Waite,  218. 

Kelsey  v.  Hardy,  667. 

Kempr.  Holland,  148. 

Kendal  v.  Garland,  192. 

Kendal  p.  Granger,  I 

Kendul  v.  Lawrence,  7'.tJ. 

Kendal  p.  Mann,  500. 

Kendal  p.  Treadwell,  868,  861. 

Kennebec  Purchase  p.  Tiffany,  841, 

Kennebec    Purchase    >•.    Springer, 

696. 
Kenned}'  v.  Price,  600. 
Kennedy  o.  Fury,  618. 
Kennedy  p.  Kennedy,  501,  538. 
Kennedy  v.  McCartney,  711. 
Kennedy  v.  Mills,  1  18. 
Kennedy  p.  Nedrow,  1  17.  148. 
Kennedy  p.  Northup,  817. 
Kennedy  p.  Nunan,  -iW,  503. 
Kenned}'  p.  Taylor,  600. 
Kennerly  p.  Biissouri   his.  Co.,  135. 
Kennett  r.  Plummer.  818. 
Kenniston  r.  Leighton,  148, 
Kensington  p.  Bouverie,  68. 
Kent  p.  Kent,  661. 
Kent  r.  Mahaffey,  887. 

Kent.  P.    Waite,  842. 

Kenworthy  p.  Tullis,  8 1 1 
Kenj'on  p.  Nichols,  662. 

Keppell  r.  Bailey,  190. 
Kercheval  >-.  Triplett,  7'js. 
Kerley  v.  Kerley,  169. 


Kernochan  r.  N.  Y.  Bowery  Ins.  Co, 
827. 

Kerns  p.  Soxman,  878. 
Kerns  v.  Swope,  816. 
Kerr,  Matter  of,  636. 
Kerr  v.  Freeman.  7*1. 
Kerr  p.  Gilmore.  \ 
Kerr  p.  Moor,  il 
Kerr  7  i  \, 

*10. 

•i,  358,  361. 

Ketehum  t.  Mobile  B.  EL,  I 

Key 

Key]  rrners 

Tr 

tiool  Dirti 

Kibby  p.  Chita 
Kidd 

Kieffei 
Kier   . 

Keigl  ,214 

Kill). 

Kilpatrick  --.  Kilpatrick,  293. 

Killain  r.  Alien, 

Kimball  p.  BlaisdeU,  7. 

Kimball  p.  I  I    K.,  609. 

Kimball  p.  I 

Kimball  P.   B 

Kimball  D.  Kim':..     .  122. 

Kimball  p.  Lewis! 

Kimball  p.  1 

Kimball  p.  Lahmas, 

Kimball  p.  Myers.  310,  811. 

Kimball  r.  Pike,  192 

Kimball  p.  Rowland,  198,  219. 

Kimball  p.  Scfaoff,  7   0, 

Kimball  p.  Btory,  -1. 

Kimball  ,-.  W  I    D  r,  B0L 

Kimber  v.  Barber.  601. 

Kime  p.  Brook-.  E 

Kimpton    .  Walk<  v.  186,  188. 

Kincaid  p.  Meadow-.  | 


TABLE    OF    CASES    riTEI). 


lxi 


King  v.  Aldborough,  187. 

King  c.  Anderson,  192. 

King  v.  Bell.  509. 

King  v.  Bronsorn,  864. 

King  v.  Donnelly,  508,  510. 

King  v.  Gelson,  730. 

King  p.  Gilson,  790. 

King  v.  Harrington,  329. 

King  v.  Herndon,  653. 

King  v.  Ins.  Co.,  327,  325. 

King  v.  Kerr's  Adinrs.,  855. 

King  v.  King,  310. 

King  o.  Lawson,  212. 

King  v.  Litter,  805. 

King  v.  Longner,  805. 
King  v.  Mutual  Ins.  Co.,  827. 

King  v.  Phillips,  255. 

King  v.  Smith,  714. 

King  o.  State  Ins.  Co.,  327. 

King  v.  Stetson,  124. 

King  v.  Yarborough,  687. 

Kingdon  v.  Bridges,  500. 

Kingman  v.  Sparrow,  705. 

Kingsbury  v.  Burnsides,  507. 

Kingsbury  v.  Buckner,  334. 

Kingsbury  v.  Wild,  756. 

King's  Chapel  v.  Pelham,  277. 

Kingsland  v.  Clark,  195. 

Kingley  v.  Holbrook,  10,  71,  799,809. 

Kingsmill  r.  Millard,  199. 

Kerma  o.  Smith,  337,  301,  319,  329, 

330,  360. 
Kinne  v.  Kinne,  881. 
Kinnear  v.  Lowell,  370. 
Kinnebrew  v.  Kinnebrew,  801. 
Kinsley  v.  Abbott,  238. 
Kinsley  v.  Ames,  363. 
Kinsman  v.  Loomis,  700. 
Kip  v.  Bank  of  New  York,  503. 
Kip  v.  Deniston,  513. 
Kirk  v.  Dean,  115,  127. 
Kirkham  v.  Boston,  292,  294. 
Kirkham  v.  Sharp,  608. 
Kirtland  v.  Pounsett,  216. 
Kitchell  v.  Burgwin,  160,  161, 163. 
Kitchen  v.  Bedford,  506. 
Kittle  v.  Van  Dyck,  124,  360. 
Kittredge  t>.  Woods,  71,  799. 


Klapner  v.  Lnverty,  433,  434,  54.'. 
Klapworth  v.  Drissk-r,  882. 
Clink  v.  Keckley,  117,  Ul. 

Iv  link  r.  Price,  307. 

Kline  v.  Heebe,  10<),  792. 

Kline  v.  Jacobs,  248. 

Knight  v.  Bell, 

Knight  v.  Dyer,  805,  600. 

Knight  v.  Elliott, 

Knight  e.  Mains,  188. 

Knight  v.  Moselv.  76, 

Knotts  d.  Hydrick,  10. 

Knowles  i>.  Nichols,  6 

Knowles  v.  Rablin,  88  I. 

Knowles  v.  Toothaker,  726. 

Knowlton  v.  Walker, 

Knowlton  v.  Galligan,  310. 

Knox  v.  Hook,  700. 

Knox  r.  Easton,  822,  323,  324. 
Knox  v.  Gye,  498. 

Koch  v.  Briggs,  368,  806. 

Koehler   v.   Black    Kiver,    etc.,  Co., 

808. 
Kortright  v.  Cady,  330,  333. 
Kramer  v.  Cook,  180,  194. 
Kramer  v.  B^ebman,  361. 
Krant  v.  Crawford,  686. 
Kre~in  v.  Mace,  161. 
Kruse  v.  Wilson,  701. 
Krusman  v.  Loomis,  728. 
Kuhn  v.  Newman,  484. 
Kuhn  v.  Rumpp,  307. 
Kumler  v.  Ferguson,  801. 
Kunckle  v.  Wymick,  186. 
Kunkle  v.  Wolfesberger,  305,  324. 
Kuntz  v.  Fisher,  501. 
Kutter  v.  Smith,  2,  7,  176. 
Kutz  v.  McCune,  853. 
Kyle  v.  Kavenagh,  7,  81. 
Kyger  v.  Ryley,  322. 


Labaree  p.  Carleton,  273,  801. 

Lacey  v.  Arnett,  653. 

Lacey  v.  Marnan,  861. 

Lackman  v.  Wood,  731. 

Lacon  v.  Allen,  289. 

L;idd  ».  Ladd,  563,  565,  567,  568. 


lxii 


TABLE   OF    (  A8E8    (  ITED. 


Ladue  v.  Detroit,  etc.,  R.  K.,  342,  329, 

330,  333. 
Lafarge  v.  Mansfield,  174. 
Lafavour  v.  Eoman,  700. 
Lafayette  v.  Blanc,  746. 
La  Trombois  v.  Jackson,  697. 
Lagow  v.  Badollet,  294. 
Lake  v.  Craddoek,  237. 
Lake  v.  Doud,  303. 
Lake  v.  (J ray,  801. 
Lake  v.  Thoma>. 
Lakin  v.  Lakin,  128. 
Lamar  v.  M  inter,  702. 
Lamar  p.  Scott,  1 1  ~>.  1 10. 
Lamb  v.  Danfortb,  240. 
Lamb  ".  Qritman,  877. 
Lamb  v.  Monta 
Lamb  c.  Shays,  168. 
Lambdon  ,-.  Sharp, 
Lambdin  p.  Lambdin,  642. 
Lampleii^li  p.  Lampleigh,  II  . 
Lampman  p.  Milks.  802. 
Lamprey  p.  N 
Lancaster  p.  Dolan,  I 
Lancaster  i.  Thornti      6     . 
Lancaster  Bai  b  ■■•   M 

Lancaster  Op.   Bai  h        Stauffer,  108. 

[.and  p.   Lane,  821. 

Landers  p.  Boltoi  .  810. 
Landon  p.  Burke 
Lane    .  Davis, 
Lane  r.  Debenham,  511. 
Lane  r.  Dighton,  BOO,  501. 
Lane  v.  Dorman,  752,  755. 
Lane  v.  Bwing,  60  '■• 
Lane  v.  Gould,  697. 
Lane  p.  Hitchcock,  351. 
Lane  v.  Lane.  198 
Lane  ».  King,  71,    124. 
Lane  r.  Ludlow,  296. 
Lane  v.  Sh< 
Lane  v.  Tlu>mps< 
Lane  p.  Tyler,  252,  2 
Lanfair  p.  La n fair,  8  >5,   '12. 
Lang  v.  Waring,  252,  268. 
Langdon  p.  Ceil  I  . 
Langdon  p.  Paul.  82, 
i  iangdon  p.  Poor,  780. 


I  Langdon  896,  756. 

i  Langford 
'   Langster  p. 

.-ton,  Ex  parte,  288,  289. 

.•  v.  At  hoi. 
Lansing  t>.  Goelet,      - 

Laps! 

811,  336. 
Lanny 
I 
Larral 

Lame 

818. 

1  2  I. 
Lathui.       I: 
Latbr 

I-  ' 

--7 

Law     .    1! 

!  16. 

Lawn 

Lawn  a. 

Lawrence  .-.  Pol 

Lawn 

Lawn 

Lawn 

Lawr 

Lawn  -  .   336, 

711. 

.    -.  Willis 
.  V 
Lawson  •.  Morton,  1 17. 
Lawtoi 
Lawton  p.  Buckingham,  801. 

Lawton  P.  Lawton.  8. 
Lawton  p.  Sailer.  B 
Lawyer  p,  Slingei 

.  \  .  B82. 

Layman  p.  Tliorp.  228. 
Layton  p.  Butler.   148. 

1 1        iwood,  7. 
Robinsoi  . 


TABLE    OF    CASES    CITED. 


lxiii 


Lear  v.  Leggett,  188. 

Learned  v.  Cutler,  115,  794. 
Learned  v.  Foster, 
Learned  v.  Riley,  810. 
Leavitt  v.  Beirne,  50:;,  513. 
Leavitt*;.  Fletcher,  189,  194 
Leavitt  v.  Lamprey,  115,  145. 
Leavitt  v.  Leavitt,  775. 
Leavitt  v.  Poll,  565,  567. 
Leavitt  v.  Towle,  842. 
Leblanc  v.  Lii'lrique,  746. 
Lecompt  v.  Wash,  128. 
Ledyard  v.  Butler,  018. 
Ledyard  v.  Chapin,  333,  336. 
Ledyard  v.  Ten  Eyek,  834. 
Ledoux  v.  Black,  746. 
Lee  v.  Brouder,  500. 
Lee  v.  Evans,  308. 
Lee  v.  Kingsbury,  3G2. 
Lee  v.  Lindell,  116. 
Lee  v.  Mason,  ot>4. 
Lee  v.  Mass.  Ins.  Co.,  812. 
Lee  v.  McMaster,  304. 
Lee  v.  Miller,  161. 
Lee  v.  Pembroke  Iron  Co.,  614. 
Lee  v.  Stone,  341. 
Leeds  v.  Cameron,  310. 
Leeds  v.  Wakefield,  566,  570. 
Lees  v.  Mosley,  434. 
Lefevre  v.  Murdock,  794. 
Leffler  v.  Armstrong,  368. 
Leger  v.  Doyle,  818. 
Leggett  v.  Bullock,  339. 
Leggett  v.  Perkins,  4'j9. 
Leggett  v.  Steele,  135. 
Leighton  v.  Leigbton,  81. 
Leighton  v.  Preston,  323. 
Leisbman  v.  White,  196. 
Leland  v.  Loring,  362. 
Lemon  v.  Hayden,  611. 
Lenox  v.  Beed,  368. 
Leonard  v.  Diamond,  494. 
Leonard  v.  Leonard.  135,  714. 
Lepage  v.  McNamara,  883. 
Lerow  v.  Wilmarth,  802. 
Lesley  Randolph,  214,  217. 
Leslie  v.  Leslie,  890. 
Leslie  v.  Marshall,  397,  532,  533. 


Lester  v.  Garlaml 
:  de  o.  Bartb,  819. 

Lethienllier  v.  Tracy,  897,  398,  413. 
667. 

ing  o.  I-.:i u u;l.-  - ,  198. 
Levy  o.  Levy,  51 1.  -  - 1. 

o.  Brush,  4i'.9. 

■  r.  Ridge,  277. 
Lewis  v.  Baird,  510.  727. 

.  Beattii . 
Lewie      I  115,  L27. 

Lewis      i  306. 

Lewis  o.  De  Forest,  310. 
Lewis  v.  James,  146. 
Lewis  o.  Jones,  6,  76 
Lewis  v  Lewis,  514,  s77,  85L 
Lewis  v,  Lyman, 
Lewis  v.  Mesaerve,  12_. 
Lewis  d.  Payn,  196,  7 
Lewis  c.  Smith,  14s,  861. 
Lewis  o.  Waters,  413. 
Lewiston  v.  Proctor,  611. 
Liggins  v.  Inge,  605,  014. 
Lightner  v.  Moonej,  SI  J, 
Lillard  o.  Rucker,  810. 
Lilly  o.  Palmer,  337,  370. 
Lillibridg  v.  Ross,  542. 
Lincoln  v.  Emerson,  326. 
Lincoln  v.  Purcell,  715. 
Linden  c.  Hepburn,  182. 
Lindsay  v.  Springer,  726. 
Lindsey  v.  Hawes,  747. 
Lindsey  v.  Miller,  715,  740. 
Lines  v.  Darden,  469,  494,  506. 
Lingan  v.  Carrol,  885. 
Linn  v.  Ross.  104. 
Linville  v.  Golding,  782. 
Linville  v.  Savage,  294. 
Linzee  v.  Mixter,  280. 
Lion  v.  Burtiss,  538,  542. 
Lippett  v.  Kelley,  827. 
Liptrot  v.  Holmes,  504. 
Lisburn  v.  Davies,  199. 
Litchfield  v.  Cudworth,  108. 
Lithgow  v.  Kavenagh,  37,  794. 
Little  v.  Downing,  694,  715. 
Little  v.  Gibson,  813. 
Little  v.  Herndon,  700. 


lxiv 


TABLE    OF    CASES    CITED. 


Little  v.  Lake,  07  1. 
Little  v.  Mequirer,  096. 
Little  v.  Pearson,  210. 
Littlefield  v.  Cole,  613. 
Lively  v.  Harwell,  890. 
Livermore  v.  Aldrich,  500. 
Livingston  v.  Haywood,  389. 
Livingston  v.  Living-ton,  500. 
Livingston  v.  Penn  Iron  Co.,  795, 
Livingston  v.  Potts,  198. 
Livingston  v.  Proseus,  795. 
Livingston  i>.  K<".  ii  >  8L 

Livingston  v.  Tanner,  226, 
Livingston  v.  T<  •    ;  593. 

Livingston  v.  Tomkins,  279. 
Lie  wily  n  v.  Jersey,  840. 
Lloyd  v.  Conover,  1 16. 
Lloyd  v.  C-x."..-.  182,  218. 
Lloyd  v.  Q*  rdon 
Lloyd  v.  Lynch, 

iseingham, 
Lloyd  v.  Spillet, 
Lloyd  v.  Read,  600. 
Lloyd'    i  ■:• '  -  794. 

Lobdell  >■.  Saves,  117,  L2I  . 
Lochenour  o.  Lochenour,  500. 
Lock  v.  Pulford,  870. 
Locke  r.  Palmer,  810. 
Locke  o.  Rowell,  169. 
Lockhart  o.  Hardy,  374. 
Lockwood  v.  Benedict, 
Lockwood  6  »8. 

Lockwood  v.  Lockwood,  177.  _'l  I.  217. 
Lockwood  >:  Studevant,  821,  s 
1.  idge  o.  B 
Lofton  o.  Witbeard,  600. 

Logan  r    Anderson.    ! 

Logan  o.  Herron,  21 1.  218. 
Logan  v.  Walker,  600. 
Long  v.  Fitassimmons,  77. 
Long  c.  Mast.  700. 
Long  v.  Ramsey,  809. 
Long  r.  White,  92. 
Longfellow  v.  Longfellow,  199. 
Longlord  r.  Eyre,  567. 
Longley  v.  Longley,  199. 
Longwith  v.  Butler,  864. 
Longwortli  v.  Bank  oftJ.  S.,  766. 


Longworth  v.  Butler,  303. 
Long  wort!  862. 

Loomer  r.  Wheelwright,  321. 
Loomis  v.  Stuyvesant,  359. 

L  ird 

LorenU  r.  I  600. 

Lorieaux  v.  Kellar,  888. 
84 1 . 

HI,  412.  499. 
Loring  r.  Marsh,  666,  884. 
Lornv  - 
Lorrimi  -    .  I 

Lothro] 

Louba:       ' 

Look      W      •-•  611. 

Loundsbur 

.. 

Lovell    .  I.' 

187. 
Low    .  H 

i. 

■.  Maccubben,  671. 
.  201. 

•  1 2. 

Lowell  v.  Daniels,  1       794. 

Lowell  o.  Middle-  I    ■..  296. 

Lowell  o.  Robins 
|  355. 

Lowrv    .  M  ■   Irow,  E  1 1 
Lowther  517. 

.\ .  -77. 
Loyd  '0. 

.-  ,..  New!  R.  R-.  837. 

:  Darren, 

Lucal  ■••  Parsons,  >■  . . 

Lucas  p.  Sawyer,  116,  1 10. 
Lucas  ».  Harris, 
Luce  -.  Carley,  I 

Luce  v.  Stub!-. 
Luch's  Appeal. 


TABLE    OF    CASES    I  I  CED. 


Ixv 


Luckett  v.  Townshend,  306. 
Luddington  v.  Kime,  415,  417,  537. 
Ludlow  v.  Cooper,  258. 
Ludlow  v.  N.  Y.  &  Harlem  R.  R, 

271,  278,  '-'77. 
Lufkin  v.  Curtis,  794. 
Luige  v.  Lucbeai,  613. 
Luke  v.  Marshall,  885. 
Lund  v.  Lund,  298,  303,  304,  306. 
Lund  v.  Parker,  699. 
Lund  v.  Woods,  115. 
Lunsford  v.  Turner,  199. 
Luntc.  Holland,  833. 
Lupton  v.  Almy,  325. 
Lupton  v.  Lupton,  374. 
Lush  v.  Druse,  827. 
Luther  v.  Winnisimmett  Co.,  615. 
Luthel's  Case,  605. 
Lux  v.  Hoff,  245. 
Luxford  v.  Cheeke,  413,  414,  415. 
Luxford  v.  Cheeker,  414. 
Lyford  v.  Thurston,  501,  503. 
Lyle  v.  Bark,  506,  510. 
Lyle  v.  Richards,  49,  52. 
Lyles  v.  Lyles,  243. 
Lyles  v.  Di^ge,  433. 
Lyman  v.  Arnold,  827. 
Lyman  v.  Hale,  9 
Lyman  v.  Lyman,  371. 
Lynch  v.  Allen,  833. 
Lynch  v.  Clements,  507. 
Lynch  v.  Livingston,  803. 
Lynde  v.  Hough,  182. 
Lynde  v.  Rowe,  5,  71,  324. 
Lyon  v.  Kain,  127,  663,  794. 
Lyon  v.  Mdlvain,  337,  321,  812. 
Lyon  v.  Reed,  198. 
Lyon  v.  Sanford,  359. 
Lyster  v.  Dolland,  318. 
Lytle  v.  Arkansas,  747. 
Lytle  v.  Beveridge,  875. 

M. 

Maccubbin  v.  Cromwell,  573. 
Mack  v.  Grover,  359. 
Mackentile  v.  Savoy,  830. 
Mackey  v.  Collins,  855. 
Macknet  v  Macknet,  396. 


Mackretb   v.  Symmons,  292,  294,  29-'. 
Muikubin  v.  Whetcroft,  191. 
Macombe  v.  Miller,  538. 
Macomber  v.  Godfrey,  614. 
Macomber  v.  Cambridge  Ins.  Co.,  827. 
Uaoon  v.  Franklin,       1. 
Macumber  v.  Bradley,  434. 
ICadigao  v.  McCarthy,  <i,  77,  400. 
Mudison  City  o.  Hildreth,  832. 
Magaw  v.  Field,  885. 
Magaw  v.  Lambert,  194. 
Magee  d.  Magce,  • 
Magee  v.  Millon,  lo0. 
Maggot  v.  Hansbargcr,  194. 
MagilU.  Hinsdale,  199,  324. 
Magniac  v.  Thompson,  469. 
Magnolia  Steamboat  v.  Marshall,  885. 
Magoon  v.  Harris,  827. 
Magruder  v.  Eggleston,  351. 
Magruder  v.  Offuth,  359. 
Magruder  v.  Peter,  292. 
Magwire  v.  Riggan,  850. 
Mahan  v.  Brown,  613. 
Mahom  v.  Williams,  356. 
Mahoney  v.  Van  Winkle,  725. 
Mahon  v.  McGraw,  501. 
Maigley  v.  Haner,  443. 
Main  v.  Feathers,  190,  192. 
Majoribank  v.  Hovender,  567. 
Major  v.  Watson,  832. 
Major  v.  Lansdey,  469. 
Malcolmb  v.  Malcolmb,  542. 
Mallack  v.  Galton,  361. 
Mallett  v.  Page,  336. 
Mallony  v.  Heron,  127,  725. 
Mallony  v.  Hitchcock,  321. 
Mallony  v.  Stodder,  818. 
Malone  v.  Majors,  144. 
Malone  v.  McLannin,  101,  107. 
Manchester  v.  Doddridge,  213,  21 
Manchester  v.  Durfee,  4-'»3. 
Manderschid  v.  Dubuque,  611. 
Manderson  v.  Luckens,  401,  536,  538. 
Mandeville  v.  Welch,  288,  289,  290. 
Mandlebaum  v.  McDonnell,  544. 
Manhattan  Co.  v.  Evertson,  127. 
Manhattan  v.  Weill,  327. 
Manice   v.  Manice,  401,  542,  544,  645. 


Ixvi 


TABLE    OF    CA8ES    CITED. 


Manly  v.  Lakin,  875. 

Manly  v.  Slason,  292.  203.  294 

Manly  v.  Best,  363,  86 1. 

Mann  v.  Edson,  121,  122. 

Mann  v.  Darlington,  501. 

Mann  v.  Mann,  883. 

Mann  v.  Pparson,  830. 

Manning  v.  Hayden  501. 

Manning  v.  Laboree,  127,  140,  145. 

Manning  o.  MarkeL         884 

Mannin  ;    .  Smith,  605. 

■ 
Mans  p.  V.  ortb 

er'a  Case,  811. 
Mansfield  p.  Alwood, 
Id  v.  Mam 
i  ,-.  Blake, 
Mantz  v.  Buchanan,  184 
Manwaring  v.  Buvor, 
Maple  v  Kussart,  '-■•.  7  1. 
Maples  d.  Millon, 
Mappa  o.  Bharp 
Mara  v.  Pi< 

:y  r    Coir.  2  15. 

March 

Marder  v.  Ch  se,  77;. 

Mariner  p.  Saunders,  7'.i4. 

Mark 

Markell  p.  Eichelberger,  335. 

Marker  .••.  Marker,  7  I.  SO. 

Markham  p.  Guerrout,  503. 

Markham  a.  Merritt,  116. 

Markham  0.  Porter, 

Markland  p.  Cramp,  190. 

Marks©.  Marks  898,  412,  532. 

Man. 

orougb  p.  Godolphin, 
Marlow  p.  Smith 
Marr  p.  Lewis,  • 
Marsellis  0.  Thalimer,  108. 
Marsh  p.  Austin.  811,  812. 

Marsh  p.  Leo.  841. 

Marsh  o.  Marsh,  890. 
Marsh  o.  I 

Marshall  o.  Christmas, 
Marshall  p.  Conrad,  644  '  : 
Marshall  v.  Crutwell,  660. 

Mar-Wall    ■.   Pisk, 


Marshall  p.  Joy, 

Marshall  p.  Green,  799. 

Marshall  v.  King,  401,  664. 

Marshall  v.  Niles. 

Marshall  v.  Stewart,  304,  305,  310. 

ill  p,  Stephens,  469,  501. 
Marshall  v.  V 

,8cl  ■  Iowa,  etc» 

-    -   _ 
Martin  r.  Almond. 
Martin  r.  Atkinson,  7 
Martin  r.  Ballon 
Martin  r.  Cowles, 
Martin 
M  irti 
Martin 
Martin  r.  Frank 

Martin  p.  Hough! 

Mart  -.196. 

Mart;  .560. 

Martin    .  K 

Martin 

Martin 

t  p.  Levi: 

"14. 
Martindale  >■.  Smith.  333. 
Marvin  p.  S 
Marvin  p.  Smitl  . 
Marvin  p.  Trumbull, 
Marvin  p.  '■ 
Marwick  p.  And] 
M  ison  p.  Denis 

•.  Fenn,  7. 
I  rant,  310. 
14. 
Mason  p.  M.  K.  Cur. 
- 

Mason  p.  Payne,  871. 

M    --.  11.  s.   Life  Ins.   •     .     .   Wilson, 

Masters     .   Poll  I 


TABLE    "i  CITED. 


Lxvii 


Masuryv.  Southwortli,  l'.tO.  I'M. 

Mather  v.  Corliss,  814. 

Mather  v.  Chapman,  884. 

Mather  v.  Norton,  502. 

Mathews  ».  Aikin,  889,  872. 

Mathews  o.  Eeyward,  601. 

Mathews  ».  Light,  501. 

M  tthis  v.  Hammond,  539. 

Malhis  v.  Stufflebeam,  500. 

Matlock  r.  Matlock,  253. 

Matthews  v,  Coalter,  71)0. 

Matthews  v.  Davis,  702. 

Matthews  v.  Duryel,  367. 

Matthews  v.  Tabener,  198. 

Matthews  o.  Wallwyn,  801. 

Matthews  v.  Ward,  04,  215,  695. 

Matthewson  r.  Smith,  117. 

Mattice  v.  Lord,  191. 

Mattix  v.  Weand,  294. 

Mattock  v.  Stearns,  90,  108. 

Matts  v.  Hawkins,  620. 

Maulding  v.  Scott,  546. 

Maule  v.  Ashmead,  186. 

Maule  v.  Weaver,  185. 

Maull  v.  Wilson,  79. 

Maundrell  v.  Maundrell,  144,  560,  561, 

562,  504. 
Maupin  v.  Emmons,  816. 
Mauser  v.  Dix,  51:5. 
Maverick  v.  Lewis,  174. 
Maxcy  v.  O'Connor,  746. 
Maxfield  v.  Patchen,  310. 
Maxwell  v.  Maxwell,  891. 
May  v.  Taylor,  513. 
May  v.  Tilman,  122. 
Mayberry  r.  Brien,  116,  117,  124,  138. 
Mayham  v.  Coombs,  294. 
Mayhew  v.  Hardisty,  182. 
Mavnard  v.  Hunt,  333. 
M  lynard  o.  Maynard,  180,  812. 
Mayw.  AhL  y,  761. 
May  v.  Feaster,  81. 
May  v.  Fletcher,  71,  351,  322,  324. 
May  v.  Foley,  761. 
May  v.  Judah,  309. 
May  v.  Le  Clair,  781. 
May  v.  Tomkies,  359. 
Mayor,  etc.,  v.  Chadwick,  616. 


Mayor,  etc.,  v.  De  Armas,  746. 

etc.,  v.  Elliott,  461. 
Mayor,  etc.,  v.  Galluchat,  517. 
Mayor,  etc.,  v.  Mabie,  186,  187. 
Mayor,  etc.,  v.  Ohio  &  P.  K.  II.,  744. 
Mayor,  etc..  v.  Whitt,  199. 
Mazych  v.  Vanderhost,  ")12. 
McAfee  v.  Keim,  7  17. 
McAllister  v.  McAllister,  884. 
McAlpine  v.  Burnett,  2     . 
McAlpine  o.  Woodruff,  853. 
McArthur  v.  Franklin,  116,  117,  334, 

359. 
McBrayer  v.  Roberts,  302. 
McBryde  v.  Wilkinson,  810. 
McCabe  v.  Bellows,  352,  318,  334. 
McCabe  v.  Gray,  818. 
McCabe  v.  Hunter,  808. 
McCabe  v.  Swap,  117,  334. 
McOafferty  v.  McCafferty,  135. 
McCall  v.  Coover,  727. 
McCall  v.  Lenox,  71,  362. 
McCall  v.  Yard,  359. 
McCallister  v.  McCallister,  499. 
McCans  v.  Board,  148. 
McCanon  v.  Cassidy,  805,  855 
McCartee  v.  Teller,  147. 
McCartney  v.  Hunt,  1 99. 
McCarty  v.  Kitchenman,  602. 
McCauley  v.  Grimes,  123,  124. 
McCausland  v.  Fleming,  841. 
McDonough  v.  Laughlin,  878. 
McLain  v.  Gregg,  90. 
McClannahan  c.  Barrow,  700. 
McClintockv.  Curd,  881. 
McClintock  v.  Pvogers,  832. 
McClungv.  Ross,  254,  700. 
McClure  v.  Harris,  123,  124. 
McConnel  v.  Holobush,  325,  355. 
McConnel  v.  Reed,  781. 
McCorkle  v.  Black,  542. 
McCormick  v.  Bishop,  621. 
McCormick  v.  Connell,  193. 
McCormick  v.  Fitzmorris,  790. 
McCormick?;.  McCormick,  71. 
McCormick  v.  Taylor,  1 37. 
McOorry  v.  King's  Heirs,  101,    106, 

770. 


lxviii 


TABLE    OF    CASES    CITED. 


McCoskerv.  Brady,  510,  515. 
McCoy  v.  Dickinson  College,  714. 
McCoy  v.  Galloway,  832. 
McCrady  v.  Brisbane,  852. 
McCrary  v.  Poster,  501. 
McCrea  v.  Marsh,  652. 
McCready  v.  Thompson,  613. 
McCubbin  v.  Cromwell,  507. 
McCue  v.  Gallagher,  500. 
McCulloch  v.  Aten,  833. 
McCullodi  r.  Maryland,  759. 
McCullough  v.  Ford,  500. 
McCullough  r.  <■  II. 

McCullough  v.  Irvine,  6  I,  7  1.  77 
McCully  v.  Smith,  116. 
McCurnber  p.  Gilman, 
McCuno  p.  McMichael,  725. 
McCurdy  v.  Canning,  246, 
McOusker  p.  McEvey,  7  10,8 
McDsniel  p.  Grace,  106. 
McDanieU    .  Oo  12,  310. 

McDormutt  o,  Burks,  B2  l. 
McDermott  p.  French,  261. 
McDill  r.  McDill,  807. 
McDonald  p.  Black,  827. 
McDonald  a.  Eggleston,  789. 
McDonald  p.  [indall,  609. 
McDonnell  p.  Pope,  198. 
McDonough  p.  Squire,  307. 
McDowell  p.  Addams, 
McDowell  v.  Morgan,  7  16. 
McDowell  p.  Simpson,  177,  214. 
McElmoyne  v.  Cohen,  711. 
McElroyv.  McElroy,  608. 
McParlan  v.  Watson,  L82. 
McGahan's  Case,  761. 
McGan  p.  Marshall,  829. 
M<-<  iiurv  p.  Eastings,  853. 
McGaughoy  p.  Eenry,  664,  664 
McGee  p.  McCants,  B76. 
McGeer.  McGee,  126. 
McGee,  o.  Morgan,  899. 
McGee  P.  Porter,  876. 
McGill  v.  Ash,  256. 
McGinnis  v.  Porter.  200. 
McGier  v.  Aaron,  568 
McGiven  v.  Wheelock,  8 
McGowan  p.  McGowan,  ">oo. 


McGready  r.  Mc(i  •.  311. 

McGregor  r.  Brown.  H,  77, 

McGregor  r.  Comstoek,  4T*.  52,  675. 

McGregor    .Hal 

McGuffey  v.  Finley,  332,  360. 

" 

M   II  ■  by    .  Bi    ly,  2.  992. 

McHenry  i 

Mcllvaine  r.  Harris,  2,  799. 

Mi  Qyaine  i .  Smith,  ( 

I     B 
M    I     ■.  tral   Bank,  368. 

Mint. 

Cherry,  117.  369,  360. 
.  W*Oan 

McEean  o.  Mitchell,  - 
McE  dt,  MS. 

M .  K  ■ 

M.  k.  lw:.v    .  >.-.  no  1,  885. 

Mi  Eeon    .  Whitne) .  182. 

Mi  Key  p.  W 
M    K 

71 
McEinni  j  o.  Reader, 

. 

McEinster  p.  Bab 
McEinstry  p.  Marvin, 
sfoKmaie    .  PerriU,  B 
BicEircherv.  Qsvwley,    M 
McEnight  p.  Wimer,  563. 
McLain  .-.  School  Directors,  884. 
McLane  p.  Moore.  7l">. 
McLaren  r.  Brewer,  501. 
McLaren  p  Spa 
McLaughlin  r.  Curts. 
McLaughlin  p.  Johns* 
Mi  Laughlin  p.  Shcpperd,  304. 
McLean  p.  Bantard,  B78 

Mi  I  can  v.  Boveo.  71. 

McLean  p.  McDonald,      - 


TABLE    OF    CASES    CITED. 


lxix 


McLean  v.  McLean,  292. 
McLean  v.  Nelson,  613. 
McLean  v.  Swanton,  675. 
McLean  v.  Towlo,  370. 
McLelland  v.  Jonness,  242. 
McLenan  v.  Sullivan,  600. 
McMahon  v.  Burchell,  243. 
McManus  v.  Carmichael,  835. 
McMillan  v.  Richards,  301,  333. 
MeMurphy  v.  Minot,  182,  192,  193. 
McNair  v.  Lee,  336. 
McNair  v.  Picotte,  333. 
McNamee  v.  Moreland,  714. 
McNaughton  v.  McNaughton,  889. 
McNaas  v.  McCombs,  829. 
McNeely  v.  Rucker,  810. 
McNerle  v.  Pope,  601. 
McPherson  v.  Cox,  50!  >. 
McPherson  v.  House],  359. 
McPherson  v.  Sequine,  255. 
McQuesten  v.  Morgan,  193. 
McRae  v.  Farrow,  573. 
McRaven  v.  McGuire,  808. 
McRee's  Adm'rs  v.  Means,  398,  530, 

540. 
McRimmon  v.  Marlin,  293. 
McRoberts  v.  Washburne,  634. 
McSorley  v.  Larissa,  355. 
McTaggart  v.  Thompson,  318. 
McTavish  v.  Carroll,  598,  602. 
McVay  v.  Bloodgood,  330. 
McVay  v.  Quality,  501. 
Mc Williams  v.  Morgan,  725. 
McWilliams  v.  Nisley,  38,  273,  275. 
Meacham  v.  Steans,  517. 
Mead  v.  York,  336. 
Mead  v.  McLaughlin,  364. 
Meador  v.  Meador,  292. 
Meadows  v.  Parry,  537. 
Mebane  v.  Womack,  885. 
Mechanics'  Bank  v.  Bank  of  Niagara, 

330. 
Medler  v.  Hyatt,  853. 
Meeker  v.  "Wright,  246. 
Meighen  v.  Strong,  816. 
Mellan  v.  Whipple,  332. 
Melling  v.  Leak,  215,  700. 
Melross  v.  Scott,  293. 


Mel yin  o.  Proprietor*,  etc.,  90,  694, 

711.  794. 
Mende  v.  Declaire,  302. 
Mendenhall  v.  Parish,  801. 
Meni  v.  Rathbone,  193. 
Menley  v.  Zeigler,  809. 
Mcrarnan  v.  Caldwell,  110. 
Mercer  v.  Mercer,  802. 
Mercer  v.  Seldon,  100,  715. 
Mercier  v.  Chase,  157. 
Mercier  v.  ll<imu.\  501. 
.Meredith  v.  Andrew,  254. 
Merrick  r.  Wallace,  338. 
Merifield  c  Cobleigh,  273. 
Merilield  v.  City  of  Worcester,  614. 
Merrill  v.  Berkshire,  240. 
Merrill  v.  Brown,  402. 
Merrill  v.  Bullock,  225,  324. 
Merrill  v.  Emery,  148,  274,  546. 
Merrill  v.  Harris,  277. 
Merrill  v.  Swift,  310. 
Merriman  v.  Barton,  332,  334,  325. 
Merriman  v.  Lanfield,  159. 
Merritt  v.  Bartholiek,  329. 
Merritt  v.  Home,  106. 
Merritt  v.  Hosmer,  373. 
Merritt  v.  Judd,  6. 
Merritt  v.  Yates,  810. 
Merwin  v.  Camp,  809. 
Metcalf  v.  Cook,  469. 
Metcalf  v.  Putnam,  755. 
Methodist  Church  v.  Jaques,  812. 
Meyer  v.  Campbell,  318. 
Meyer  a.  Fogg,  878. 
Miami  Ex.  Co.  v.  TJ.   S.  Bank,  307, 

308,  310,  326,  376. 
Michard  v.  Girod,  365. 
Mich.,  etc.,  R.  R.  v.  Mellen,  501. 
Michigan  Ins.  Co.  v.  Brown,  310,  359. 
Mickeies  v.  Dillaye,  355. 
Mickeies  v.  Townsend,  337,  322,  728. 
Micklin  v.  Williams,  618. 
Middlebrook  v.  Corwin,  2,  76. 
Middleton  v.  Findla,  798. 
Middleton  v.  Pritchard,  834. 
Middleton  Sav.  Bk.  v.  Bates,  322. 
Miles  v.  Fisher,  237. 
Miles  v.  Gray,  330. 


lxx 


TABLE    Oi:'    CASES    CITED. 


Miles  v.  King,  339. 

Miles  v.  Miles,  77. 

Miles  v   Smith,  3">9. 

Miffins  v.  Neal,  538. 

Milham  v.  Sharp,  634. 

Millay  v.  Wiley,  878. 

Mill  Dam  Foundry  v.  Ilovey,  808. 

Mill  River  Co.  v.  Smith,  2. 

Millei  mar,  129. 

Miller  o.  Atkinson,  884. 

Miller  r.  Auburii. 

Miller  v.  Aldricb, 

Miller  v.  Baker,  »',,  70. 

Miller  v.  Bentley, 

Miller  v.  Beverly,  140. 

Miller  v.  Bin's  Ex'or, 

Miller  <•.  Bonsadon,  1 

Miller  v.  Birdaong,  500. 

Miller  v.  Bradford,  £17. 

Miller  o.  Bingham,  L(    . 

Miller  o.  Cherry, 

Miller  v.  Chrittenden,  466,  508,  541, 

797. 
Miller  r.  Ewing,  715. 
Miller  v.  Goodwin,  801. 
Miller  r.  Eenderson,  882,  300. 
Miller  ».  Jones,  662. 
Miller  r.  Lanbach,  615. 
Miller  v.  Levi.  281. 
Miller  v.  Lincoln, 
Miller  v.  Lingerman,  792 
Miller  v.  McBrien,  199. 
Miller  r.  Macomb,  •">42. 
Miller  r.  Miller,  110,  241,   242,   2o4, 

887,  664. 
Miller  r.  Pearce, 
Miller  v.  Phillips,  888, 
Miller  v.  K.  &  W.  B,  R,  330. 
Miller  0.  Shaw,  G93. 
Miller  v.  Sharp,  3G1. 
Miller  v.  Snowman,  90. 
Miller  v.  Stump,  117,  124. 
Miller  v.  Teachout,  884, 
Miller  v.  Travers,  883. 
Miller  v.  Tipton,  312. 
Miller  v.  Wilson,  443. 
Millet t  r.  Parker,  811. 
Millott  r.  Fowle,  697. 


Millican  v.  Millican,  37 

Mills  v.  Catlin,  E 

Mills  f.  County  Commissioners,  634. 

Mills  v.  Darley,  310. 

Mills  v.  Dennis,  35S,  361. 

Mills  v.  Ewing,  728. 

Mills  v.  Goff,  218. 

M    Lb  r.  <;   re,  -12. 

Mills  v.  Haines,  508. 

Mills  v.  Lockwood,  755. 

.Mills  r.  Merryman,  i 

Mills  v.  Mills*  310. 

Mills 

Mills  r.  Smith,  - 

Mills  r.  St  Clair  Co.,  636. 

Mills  o.  mi.-,  124,  3'.9. 

Mimi  pi  Lockett,  - 

Minis  •.  Mai  on  A  Weat  B,  1L,  294. 

Mini,  •.  Mima,  888,  ■ 

Miner  v.  Beeknaii. 

Miner  c.  Clark,  E 

Minnesota  < '  .   I 

Minor*.  Hi;  . 

Natchez,  757. 
. 
Minot  r.  Br.-.ik-. 
Missouri    Inst,    for    Blind    r.    How, 

611. 

II «.  Berry,  601. 
Mitchell  r.  Bartlett,  324,  812. 
Mitchell  v.  B  t,  :'>63. 

Mitchell    ■.   B  irnhan  3,  310, 

311, 
Mitchell  v.  Clark. 
Mitchell  r.  Laden. 
Mitchell  v.  Mayor,  eUu,  618. 
Mitchell  o.  Mitchell,  L! 
Mitchell  r.  Ryan, 
Mitchell  c.  Sevier.  90. 
Mitchell  D.  Skinner.  500. 
Mitchell  p.  Walk       - 
Mitchell  v.  Warner,  862. 
M  x  -.  Co  flea,  810. 
Mix  r.  Hotchkiss,  327,  355. 
Mix  o.  Smith, 
Mixer  v.  Reed,  842. 
Mil  mi  .".  Armstrong,  B 
Mizell  r.  Burnett,  27  I. 


TABLE    OF    CASES    CITED. 


lxxi 


Moale  v.  Mayor  of  Baltimore,  753, 
759. 

Mobile  D.  &  I.  Co.  v.  Kuder,  371. 

Moffatte.  Smith,  192,  194. 

Moffatt  o.  Strong,  546. 

Sioj  »«.  Mogg,  5:::;.  539. 

Mohawk  Bridge  u.  CTtica  R.  R.,  636. 

Mollineauz  v.  Powell,  81. 

Monroe  v.  Bowen,  273. 

Montague  v.  Dawes,  363,  365,  366. 

Montague  v.  Gay,  P1'-'. 

Montaguo  v.  Hayes,  506,  507. 

Montefiori  v.  Browne,  666. 

Montello,  The,  836. 

Montgomery  v.  Bruere,  117. 

Montgomery  p.  Chadwick,   305,  325, 

355. 
Montgomery  v.  Craig,  200. 
Montgomery  t?.  Dorion,  805. 
Montgomery  o,  Middlemiss,  358,  359. 
Montgomery  p.  Tutt,  361. 
Monypenny  v.  Dering,  417,  418. 
Moody  v.  King,  104,  129. 
Mooers  v.  "Wait,  81. 
Mooers  v.  White,  877. 
Mooney  v.  Brinkley,  351. 
Mooney  v.  Mass,  359,  361. 
Moore  v.  Abernathy,  671. 
Moore  v.  Beasley,  199. 
Moore  v.  Beasom,  352,  321,  334. 
Moore  v.  Boyd,  213,  214,  217. 
Moore  v.  Cable,  325,  326,  365. 
Moore  v.  Cornell,  320. 
Moore  v.  Choat,  292. 
Moore  v.  Dunond,  433,  567 
Moore  v.  Degraw,  325. 
Moore  v.  Dunning,  163. 
Moore  v.  Esty,  117,  122. 
Moore  v.  Fletcher,  842. 
Moore  v.  Frost,  115,  131. 
Moore  v.  Fuller,  310. 
Moore  v.  Hazleton,  813. 
Moore  v.  Howe,  542,  544. 
Moore  v.  Jourdin,  819. 
Moore  v.  Kent,  135. 
Moore  v.  Littel,  533,  727. 
Moore  v.  Luce,  65,  717. 
Moore  v.  Lyons,  397,  401. 


Moore  v.  McWilliams,  878. 
iaum,  501. 
Moore  v.  Maxwell,  7  16. 
.Moon-  ,-.  Miller, 
Moore  v.  Moore,  507,  884. 
Moore  v.  New  York,   115,  127,  132, 

140. 
Moore  v.  Parker,  434,  530. 
Ifoore    .  Pendleton,  805. 
Moor  ■  o.  Pickett,  507. 
Moore  v.  Pitts,  183,  272,  863. 
Mo, .re  v.  Rake,  51::. 
Moore  v.  Rawson,  605. 
Moore  o.  Raj  mond,  2 
Moore  v.  Rollins,  124. 
Moore  v.  Schultz,  464,  494. 
Moore  v.  Spenill,  201. 
Moore  v.  Starks,  359. 
Moore  v.  Tisdale,  127. 
Moore  v.  Titman,  325. 
Moore  v.  Vail,  854. 
Moore  v.  Vinten,  90. 
Moore  v.  Wade,  307. 
Moore  v.  Ware,  329,  360. 
Moore  v.  Watson,  339. 
Moore  v.  Weaver,  402,  433,  412. 
Moore  v.  Webber,  187,  195. 
Moore  v.  Wilkinson,  746. 
Moorehouse   r.  Cotheal,   69,   73,   74, 

538,  542. 
Mordaunt  v.  Petersborough,  561. 
Mordecai  v.  Parker,  513. 
M  .rdecai  v.  Jones,  883. 
-Moreau  v.  Detehemendy,  49. 
Moreau  v.  Safferans,  253. 
Morehead  v.  Watkyns,  214,  218. 
Moreton  v.  Harrison,  295. 
Morgan  v.  Bissell,  179. 
Morgan  v.  Elam,  409. 
Morgan  v.  Herri ck,  259. 
Morgan  v.  Larned.  728. 
Morgan  v.  Moore.  504. 
Morgans.  Morgan,  105,  326. 
Morgan  v.  Plumb,  362. 
Morgan  v.  Reading,  833. 
Morgan  v.  Woodward,  322. 
Morley  v.  Saunders,  66. 
Morrell  v.  Fisher,  829. 


lxxii 


TAliLE    OF    CASES    CITED. 


Morrill  v.  Brown,  445. 
Morrill  v.  Noyes,  31*2. 
Morrill  v.  Swartz,  761. 
Morris  v.  Harris,  873. 
Morris  v.  Henderson,  813. 
Morris  v.  Nixon,  302. 
Morris  v.  Oxford,  332. 
Morris  v.  Oakman,  370. 
Morris  v.  Potter,  538. 
Morris  v.  Sargent,  127. 
Morris  v.  Stephens,  797. 
Morris  v.  Vanderen,  790. 
Morris  v.  Ward,  667. 
Morris  v.  Way,  368. 
Morris  v.  Wheeler,  359. 
Morris  Canal  v.  Lewis,  726. 
Morris  Canal  v.  liyerson,  801. 
Morrison  v.  Bean,  3G3. 
Morrison  v.  Bierer,  506. 
Morrison  v.  Bowman,  805. 
Morrison  v.  Buckner,  851,  324. 
Morrison  v.  Campbell, 
Morrison  v.  Ohadwick,  196. 
Morri.-on  v.  Hays,  696. 

Morrison  D.  Keen,  833. 
Morrison  r.  Kelly,  814. 
Morrison  p.  Kinstra,  506. 
Morrison  v.  Me  Arthur,  851. 
Morrison  v.  McDaniel,  1   0. 
Morrison  r.  McLeod, 
Morrison  v.  Marquardi.  602. 
Morrison  v.  Kossignol,  175. 
Morrison  v.  Wilson,  781,  794. 
Morrow  v.  Scott,  678. 
Morrow  v.  Willard,  829. 

Morse  v.  Aid  rich,  190. 
Morse  v.  Caryenter,  798. 

Morse  v.  Churchill,  699. 

Morse  t».  Copeland,  662. 

Morse  v.  Goddard,  187,  199,  213,  824. 

Morse  v.  Morse,  885. 

Morse  v.  Merritt,  824. 

Morse  v.  Royal,  501. 

Morse  v.  Salisbury,  810. 

Morse  v.  Sfhattuck,  4  l  . 

Morton  d.  Barrett,  462,  468,  604. 

Morton  v.  Blankenship,  746. 

Morton  v.  Folger,  832. 


Morton  v.  Noble,  127. 
Morton  v.  Onion,  888. 
Morton  v.  S.vuthgate,  513. 
Morton  v.  Reeds,  760. 
Morton  v.  II.  .bards,  339. 
■a  v.  Saunders,  T_- 
,  r.  Woods,  191,  213,  217. 
.  Moeby, 
p.  Marshall,  66,  374. 

\I   ■-.:•  r     .  "78. 

Mosley 

M   --  u.  G  nam  ir       24 

'■ 

.  K. : ;  ■ .  - 
. 

-  •  i. 
Mosser    .  M  •--■    .  B8L 

9.  Clark,  ::  12,       1 
Mott  r  Pal 

..  r.  Hunt, 
Moun  293. 

7. 

Mon  i ".'  p.  £  '^5. 

.  McCull  ' 

M  . If     I  ■.  Paters  m 
Mullanphy  o.  " 
Mullany  o.  M  i 
Mullen       - 
Muller  ».  Boggs,  240. 
Mullen    .  W  •  330. 

Mullikin  p.  Mullikin,  2 
Mumford  A  Brown,  212. 
Mumford  v.  Whitney,  651. 
Mummy  v.  Johnston,  ' 
Mundy  o.  Mundy, 
Municipality  c.  Orleans  Cotton  Press* 

685. 
Munn  v.  Burgess,  365. 
Munn  t>.  Worral  . 
Munneslyn  c.  Kunneslyn,  110. 
Munroe  v.  Luke.  254 
Munroe  t>.  War.!. 
Munsell  r».  Oarew,  101. 
Murdook  p.  Chapman,  312. 
Murdock  ».  Gilchrist,  861, 
Murdoch  v.  Hughes.  607. 


TABLE   OF   CASES   CITED. 


lxxiii 


Murphy  v.  Oilley,  307,  308,  310. 

Murphy  v.  Camphell,  839. 

Murphy  v.  Murphy,  878. 

Mirphy  v.  Nathan,  600. 

Murphy  v.  Parifay,  305. 

Murphy  v.  Price,  853. 

Murphy  v.  Peabody,  500. 

Murray  v.  Ballow,  501. 

Murray  v.  Gouverneur,  702. 

Murray  v.  Hall,  238,  255. 

Tlurray  t>.  Harkway,  191. 

Murray  v   Murray,  498. 

Murray  v.  Murphy,  877. 

Murray  v.  Trigg,  307. 

Murray  v.  Walker,  307,  322. 

Musharn  v.  Musham,  498,  601. 

Musick  v.  Barney,  G95. 

Muskett  v.  Hill,  654. 

Musgrove  v.  Bouser,  816. 

Muskingum  Turnpike  v.  "Ward,  798. 

Mussey  v.  Scott,  805. 

Mutual  Ins.  Co.  v.  Deale,  338. 

Mutual  Ins.  Co.  e.  Estelle,  324. 

Muzzey  v.  Davis,  611. 

Myers  v.  Croft,  747. 

Myers  v.  Myers,  402. 

Myers  v.  Ross,  819. 

Mj-ers  v.  Sanders,  792. 

M)'ers  v.  Yanderbelt,  875. 

Myers  v.  White,  301,  324. 

Myers  v.  Wright,  360. 

N. 

Nagle  v.  Macy,  329,  322. 
Nailer  v.  Stanley,  371. 
Nan  Mickel,  In  re,  889. 
Napier  v.  Bulwinkle,  613. 
Napier  v.  Howard,  533. 
Napper  v.  Saunders,  397,  413. 
Nave  v.  Berry,  189,  194. 
Nazareth  Inst.  v.  Lowe,  120,  292. 
Neale  v.  Hagthorp,  355. 
Neale  v.  Reed,  327. 
Needham  v.  Bronson,  246. 
Needham  v.  Judson,  794. 
Needles  v.  Martin,  884. 
Neel  v.  Neel,  75. 
Neely  v.  Butler,  106. 


Neil  v.  Neil,  877. 

Neilson  v.  Blight,  330. 

Neilson  v.  Lagow,  504. 

Neimcewicz  v.  Gahn,  310. 

Nelson  v.  Carrington,  668. 

Nelson  v.  Butterfield,  836. 

Nelson  v.  Gibol,  769. 

Nelson  v.  McGiffert,  890. 

Nelson  v.  Sims,  7  I  . 

Nepeon  v.  Doe,  2l'i>. 

Nerhoth  v.  Althouse,  199. 

Nettleton  v.  Sikes,  10,  652. 

Neves  v.  Scott,  495,  506   574. 

Nevil  v.  Saunders,  468,  469. 

Nevittt).  Bacon,  310,  326,  358. 

Newcombr.  Stebbins,  663. 

New  England  Jewelry  Co.  v.  Meriara, 

321. 
New  Hampshire  Bank  v.  Willard,  310. 
New  Ipswich  Factory  v.  Batchelder, 

602. 
New  Orleans  v.  United  States,  686. 
New  Orleans,  etc.,  R.  R.,  v.  Moye,  611. 
New  York  Life  Ins.  Co.  v.  Minor,  609. 
New  York,  etc.,  R.  R.  v.  Boston,  etc., 

R.  R.,  636. 
Newbold  v.  Ridgeway,  143. 
Newbold  v.  Newbold,  322. 
Newburgh    Turnpike    Co.  v.  Miller, 

636. 
Newcomb  v.  Bonham,  308. 
Newcomb  v.  Dewey,  358. 
Newcomb  v.  Ramer,  201. 
Newell's  Appeal,  882. 
Newell  v.  Hill,  646. 
Newell  v.  Wheeler,  760. 
Newhall  v.  Burt,  304. 
Newhall  v.  Ireson,  833. 
Newhall  v.  Lynn  Savings  Bank,  334. 

361. 
Newhall  v.  Pierce,  305. 
Newhall  v.  Wheeler,  467,  504,  699. 
Newhall  v.  Wright,  322,  331,  326. 
Newkirk  v.  Newkirk,  37. 
Newlin  v.  Freeman,  469. 
Newland  v.  Newland,  398. 
Newman  v.  Chapman,  326,  360. 
Newman  v.  Jackson,  368. 


lxxiv 


TABLE    OF    CASES    CITED. 


Newman  v.  Butter,  200. 
Newman  ?;.  Bamuels,  303,  368. 
Newson  v.  Clark,  884. 
Newson  v.  Pryor,  832. 
Newton  v.  Clark,  £77. 
Newton  v.  Cook,  66. 
Newton  v.  Eddy,  833. 
N   wton  v.  Harland,  227. 
Newton  v.  McLean,  292,  513. 
Newton  v.  McKay,  822. 
Newton  v.  Porter,  501. 
Newton  v.  Taylor,  B07. 
Nice's  Appeal,  8 
Nichol  v.  Dupre<*,  671. 
Nicholas  v.  Purczell,  160,  665. 
Nicholl  v.  N.  Y.  &  Erie  B.  B  . 

277,  385. 
Nicholls  v.  Lee. 
Nicholls  o.  Williams,  883. 
Nichols  v.  Baxter,  327,  355,  365. 
Ni<h  Is  v.  Allen,  499. 
Nichols  v.  Cahe,  807. 
Nichols  v.  Eaton,  503. 
Nichols  v.  Denny,  287,  482. 
Nichols  v.  Glover,  296. 
Nichols©.  Nich.»l<,  682,  537. 
Nichols  v.  Levy,  60  . 
Nichols  v.  Reynolds,  307,  326. 
Nichols  v.  Saunders,  824, 
Nichols  v.  Smith,  260. 
Nichols  v.  Williams,  216. 
Nicholson  v.  Bottle,  688,  642, 
Nicholson  v.  Balsey,  612,  790. 
Nickerson  v.  Buck,  876. 
Nicoll  r.  N.  Y.  &  Eric  R.  11.,  190. 
Nicolson  v.  Wordsworth, 
Nidelet  r.  Wales.  194. 
Nightingal  v.  Burrell,  47,   398,   532, 

536,  637,  538,  642. 
Nightingal  v.  Hidden,  496,  497. 
Niles  v.  Gray,  542. 
Niles  v.  Harmon,  871. 
Niles  v.  Patch,  834. 
Nilc<  r.  RausdorfJ 
Nims  v.  Palmer,  744. 
Nims  i>.  Armstrong,  STs. 
Nims  r.  Bynum,  822. 
Nixon  r.  Porter,  832. 


Noble  v.  Bosworth,  799. 

i:  Burnett,  878. 
Noble  r.  Sylvest 
Nock  v.  No.  k,  ''TT. 

■.  Ewing,  115. 
N   ••!  •-.  1: 
Noland  v.  Joh:. 
Noon:: 

in  v.  Lee,  - 
Norfleetr.  Cromwell,  862. 
Norman  v.  Burnett,  506. 
S 

Norris  v.  Hensley. 
Norris  v.  Jo! 
Norris  o.  lGlner,  i 

Norris  r.  Morrill,  219. 

Norris  r.  Moulton,  161,  162,  334. 

Norrij  v.  Thompson,  •■ 

Norris  v.  Wilkinson,  288,  289. 

Northern  t.  Hurley,  608,  617. 

Northampfa     M        .  Ames,    -2, 332, 

smpton  Bank  r.  Balliet,  83 

Northc  .    .  -:   . 

Northcutt  v.  Whipp,  I 
Northrup  *.  Bn  hmer,  818. 
Northy  r.  Northy,  330. 
Norton  v.  Cooper,  355. 
Norton  v.  Griffith, 
Norton  r.  Ja 

Norton  r.  Leonard,  468 

o.  Lewis  871. 
Norton  ;•.  Norton, 
Norton  r.  Sholefield,  616. 
Norton  c.  Webb,  323. 
Norton  o,  Williams,  889. 
■11  r.  Johnson,  ! 
•Norwich,  City  of,  p.  Hubbard,  319. 
Norwich  Ins.  Co.  v.  B rower,  327. 
Norwood  r.  Morrow,  115,  126,  140. 

Notte'8  Appeal.  S 

Nottingham  v.  Jennings,  543. 
Nourse  r.  Merriam,  41s. 
Noyes  o.  Clark,  309. 
Noyes  p.  Rich,  : 

-  t,  Sturdevant,  \i 

Noyes  r.  White.  880. 

Nugent »,  Riley,  •05. 


TABLE    OF    (    \-l>    Mill.. 


lxxv 


Nuttall  v.  Bracewell,  017. 
Nutting  v.  Herbert,  819. 

o. 

O'Brien  v.  Kuaterer,  2,  6. 
O'Brien  v.  Perry,  7  17. 
O'Fallon  p.  Doggett,  835. 
O'Forral  c.  Simplot,  1 15, 
O'Hara  v.  Richardson,  697. 
O'Keefe  v.  Calthrope,  .rjO:i. 
O'Kelly  O'Kelly,  Ml. 
O'Rorke  e.  Smith,  601. 
Oakes  v.  Marcy,  728. 
Oakea  v.  Monroe,  218. 
Oaksmith  v.  Ji>lmsti>n,  715. 
Oates  v.  Cooke,  467,  504. 
Odiorno  v.  Lyford,  242. 
Odiorne  v.  Mason,  810. 
Odlin  v.  Gove,  725. 
Offutt  v.  Scott,  253. 
Ogburn  v.  Connor,  615. 
Ogden  v.  Gibbons,  636. 
Ogden  v.  Grant,  305. 
Ogden  v.  Grove,  609. 
Ogden  v.  Stock,  2. 
Ogden  v.  Walters,  361. 
Ogden's  Appeal,  434. 
Ohio  Life  Ins.  Co.  v.  Ledyard,  339. 
Ohio  Life  Ins.  Co.  v.  Winn,  372. 
Ohling  v.  Luitjens,  359. 
Okeson  v.  Patterson,  782,  801. 
Olcott  v.  Wing,  253. 
Oldenbaugh  v.  Bradford,  308. 
Oldham  v.  Henderson,  91. 
Olds  v.  Cummings,  332. 
Olinda  v.  Lathrop,  837. 
Oliver  v.  Dougherty,  500. 
Oliver  v.  Decatur,  324. 
Oliver  v.  Stone,  813. 
Olmstead  v.  Elder,  329. 
Olmstead  v.  Harvey,  875. 
Olmstead  v.  Nilcs,  177. 
Olneyu.  Hull,  411,  412. 
Olney  v.  Howe,  506. 
Opdyke  v.  Stephens,  831. 
Ord  v.  McKee,  330. 
Orford  v.  Benton,  107. 
Oriental  Bank  r.  Haskins,  802. 


Orleans  v.  Chatham,  502,  506,  607. 

Orman  v.  Day,  620. 

Ormiston  r.  Olcott,  518. 

Ormond  v.  Martin,  700. 

Ormsby  v.  Ihmsen,  72 

Ormsby  v.  Tarascon,  I 

OrndortT  r.  Bummer,  878. 

Orons  v.  Veazie,  760. 

Orr  r.  Iladley,  318,  726. 

Orr  v.  Qui mb v,  753. 
I  Orser  o.  1 1 
]  Orton  v.  Knab,  499. 

Osborn  v.  Carr,  341. 

Oshorn  v.  Osborn,  443. 

Osborne  r.  Ballew,  696. 

Osborne  v.  Cook,  877. 

Osborne  v.  Horine,  138. 

Osborne  v.  Widenhouse,  671. 

Osborne  v.  Tunis,  360,  361,  362. 

Osgood  v.  Abbott,  277. 

Osgood  v.  Franklin,  566. 

Osgood  v.  Howard,  2. 

Osgood  v.  Thompson  Bank,  307. 

Osman  v.  Sheafe,  465. 

Osterhout  v.  Shoemaker,  122. 

Osterman  v.  Baldwin,  507. 

Ostrander  v.  Spickard,  149. 

Otis  v.  Beckwith,  506. 

Otis  v.  Parsleys,  116,  388. 

Qtis  v.  Smith,  10. 

Otis  v.  Warren,  140. 

Ottawa  Plank  Road  v.  Murray,  309. 

Ottman  v.  Moak,  372. 

Ottumwa  Lodge  v.  Lewis,  242,  621. 

Ouseley  v.  Arnstruther,  501. 

Outcalt  v.  Ludlow,  714. 

Overall  v.  Ellis,  360. 

Overfield  v.  Christie,  701. 

Overman  v.  Kerr,  812. 

Overseers,  etc.,  v.  Sears,  37. 

Overton  v.  Devisson,  832. 

Overton  v.  Overton,  878. 

Owen  v.  Ellis,  562. 

Owen  v.  Field,  281,  653. 

Owen  v.  Hyde,  69,  74,  76,  116. 

Owen  v.  Morton,  254,  700. 

Owen  v.  Peacock,  131. 

Owen  v.  Perry,  789. 


lxxvi 


TABLE    OF    CASES    CITED. 


Owen  v.  Slatter,  130. 

Owens  v.  Missionary  Society,  882. 

Owens  v.  Owens,  50G. 


Pace  v.  Chadderdon,  322. 
Packard  v.  Ames,  863. 
Packard  v.  Agawan  Ins.  Co. 
Packer  v.  Rochester  and  Syr.  R.  R., 

858,  861. 
Padelford  r.  Padelford,  67,  74 
Padfield  v.  PadEeld,  876. 
Page  v.  Chum,  254. 
Page  v.  Foster,    I 
Page  v.  Haywar.l,  49,  398,  537. 
Page  v.  Kinsman,  199. 
Page  v.  Page,  139. 
Page  v.  Pierce,  I 
Pagev.  Robinson,  851,  322. 
Page  r.  Eloper,  664. 
Paige  v.  Sherman,  801. 
Paine  v.  Ronton,  816. 
Paii  e  p.  Boston,  613. 
Paine  p.  French, 
Paine  v.  Smith,  288, 
Paine  v.  "Wood,  2.  -    I 
Palairit's  Appeal,  76  L 
Palethorpv.  Bergner,  191. 
Palmer  v.  Edwards,  182. 
Palmer  v.  Fleshees,  618. 
Palmer  v.  Foote, 
Palmer  v.  Forbes,  J. 
Palmer  v.  Guthrie,  :'07. 
Palmer  p.  Mulligan,  835. 
Palmer  v.  Oakley,  501. 
Palmer  v.  Stevens,  319. 
Palmer  v.  Whetmore,  195. 
Palmer  v.  Yager,  861. 
Panton  v.  Holland,  618. 
Panton  p.  Tefffc,  883. 
Paris  «.  Hulett,  362. 
Parish  v.  Fan-is,  642. 
Parish  v.  Ward,  675. 
Parish  v.  Whitney,  853. 
Parish  Will  Case,"  881. 
Park  v.  Baker,  5. 
Park  v.  Rates,  861. 
Park  p.  Pratt,  795. 


I  Parke  r.  Kilham,  240. 
Parke  v.  Mears,  809. 
Parker  p.  Anderson,  7 
Parker  v.  Boston  and  ML  R.  R.,  615. 
Parker  t\  Chambliss,  81. 
Parker  v.  Converse,  509. 
Parker  v.  Dean, 
Park-  .  699,  613. 

Parker  r.  Foj,  293.  601. 
Parker  r.  Fran 
Pari. 

741. 
Parker  p.  H 
Parker  r.  Murphy, 
Parker  p.  Nigh  til  [ 
Parker  r.  N 
Parker 
Park' 
Parker  p.  Parker.  11'..  1'."..  144,  638. 

570. 
Parker  r.  alo,    693, 

Parker  p.  Raymond,  199. 
Parker  p.  Sin  der, 
Parker    .  W 

Parker   .  W 

Parker  p.  White, 

Parkhunt  p.  Cummii 

Parkhurst  p.  Northern,  etc.,  B.  R.Con 

i 
Parkhurst  p.  Smith,  400. 
Parkhurst  p.  Van  Cortland,  507. 

Dunham.  6t 
Parkman  r.  A1  .  802. 

Parka  • 

Parks  p.  Boston.  I 
Parks  v.  Hall,  802. 
Parks  t\  Loom  is.  I 
Parks  v.  Newburyport, 
Parmelee  p.  Dawn, 
Parmelee  p.  Simpson,  812. 
Parmenter  p.  Webber. 
Parmenter  p.  Walker,  365. 
Parmentier  r.  Qillespi)  . 
Parramore  p.  Taylor,  - 

Parrish  r.  Stevens.  611. 

-  v.  Boyd, 
OS  p.  Camp.  2,  ' 


TABLE    OF    CASES    CITED. 


lxxvii 


Parsons  v.  HwgbdB,  851. 
Parsons  v.  Johnson,  602. 
Parsons  v.  Miller,  363. 
Parsons  v.  Smith,  799. 
Parsons  v.  Wells,  B29. 
Partons  v.  Winslow,  68. 
Partridge  v.  Bere,  326. 
Partridge  v.  Colegate,  241. 
Partridge  v.  Dorsey,  46,  52. 
Partridge  v.  Gilbert,  620. 
Partridge  v.  Messer,  601. 
Partridge  v.  Partridge,  380 
Partridge  v.  Scott,  618. 
Partridge  v.  Swazy,  310. 
Patten  v.  Deshon,  190,  192. 
Patten  v.  Moore,  819. 
Patten  v.  Pearson,  329,  362,  365. 
Patten  v.  Tallman,  878. 
Patterson  v.  Arthur,  853. 
Patterson  v.  Blake,  253. 
Patterson  v.  Boston,  195. 

Patterson  v.  Clark,  305. 

Patterson  v.  De  la  Konde,  816. 

Patterson  v.  Ellis,  542. 

Patterson  v.  Lytle,  725. 

Patterson  v.  Pease,  728,  809. 

Patterson  v.  Robinson,  469. 

Patterson  v.  Triumph  Ins.  Co.,  327. 

Patterson  v.  Yeaton,  309,  741. 

Pattison's  Appeal,  757,  799. 

Patton  v.  Axley,  214. 

Patton  v.  Beecher,  507. 

Patton  v.  Page,  374. 

Patton  v.  Crow,  563. 

Patty  v.  Pease,  371. 

Paul  v.  Campbell,  245. 

Paul  v.  Fulton,  501. 

Paul  v.  Witman,  860. 

Paulke  v.  Cooke,  802. 

Paxon  v.  Paul,  333. 

Paxton  v.  Harrier,  375. 

Payne  v.  Attlebury,  292,  295. 

Payne  v.  Avery,  292. 

Payne  v.  Harrell,  296,  362. 

Payne  v.  Payne,  756,  890. 

Peabody  v.  Hewitt,  703,  714. 

Peabody  v.  Mi  not,  238,  260. 

Peabody  v.  Tarbell,  443. 


Pearco  v.  Foreman,  292. 

Pearce  < .  McClenaghan,  598,  605. 

Pearce  v.  Savage,  2-8,   399,  401,  604. 

Pearl  v.  McDowell,  7 

Pearson  r.  Seay,  305,  306. 

Peas  v.  Kelly,  292. 

Pease  v.  Warren,  329. 

Peaslee  v.  Gee,  G 

Peavey  v.  Tilton,  796. 

Pecare  v.  Chouteau,  851. 

Peck  v.  Batchelder,  5,  6. 

Peck  v.  Carpenter,  242. 

Peck  v.  Carey,  877. 

Peck  v.  Henderson,  563. 

Peck  v.  Hensley,  854. 

Peck  v.  Jones,  195,  855. 

Peck  v.  Mallams,  338,  788. 

Peck  v.  Northrop,  192. 

Peck  v.  Smith,  842. 

Pederick  v.  Searle,  714. 

Pegnes  r.  Pcgnes,  500. 

Pells  v.  Brown,  642. 

Pelton  v.  Fannin,  361. 

Pelton  v.  Westchester,  498. 

Pemberton  v.  Pemberton,  148. 

Pence  v.  Duval,  853. 

Penderson  v.  Brown,  318. 

Pendleton  v.  Booth,  326. 

Pendleton  v.  Fay,  332. 

Penhey  v.  Hurrell,  419,  421,  422. 

Penhallow  %\  Dwight,  71,  757. 

Penn  v.  Ott,  312. 

Penne  v.  Peacock,  561. 

Pennel  v.  Weyant,  812. 

Pennington  v.  Ogden,  671. 

Pennsylvania  Co.  v.  Dovey,  813. 

Penton  v.  Kobart,  6,  70. 

People  v.  Bostwick,  815. 

People  v.  Canal  Appraisers,  833. 

People  v.  Darling,  217. 

People  v.  Gillis,  179. 

People  v.  Henderson,  833. 

People  v.  Humphrey,  753. 

People  v.  Irwin,  675. 

People  v.  Law,  837. 

People  v.  Livingston,  745. 

People  v.  Mayor,  753,  795. 

People  v.  Norton,  509,  510. 


lxxviii 


TABLE    OF    CASES    CITED. 


People  v.  Organ,  789. 

People  v.  Piatt,  833. 

People  v.  Eickhert,  177. 

People  v.  Salem,  753. 

People  v.  Snyder,  812. 

People  v.  Stiner,  199. 

People  v.  Sturtevant,  636. 

People  v.  Supreme  Court,  309. 

People  v.  Tibbetts,  835. 

People  v.  Utica  In9.  Co.,  633. 

People  v.  Ulster  Com.  Pleas,  367. 

People  v.  Van  Rensselaer,  715. 

Peralta  v.  Castro,  878. 

Perdue  v.  Aldridge,  810. 

Perin  v.  Carey,  8^4. 

Perkins,  Lessee,  v.  Dibble,  303,  333. 

Perkins  v.  Nichols,  500. 

Perkins  v.  Perkins,  503. 

Perkins  v.  Steam,  336. 

Perkins  v.  Sterne,  326,  329. 

Perkins  v.  Woods,  359,  360. 

Perminter  i'.  McDaniel,  789. 

Perrin  v.  Blake,  433,  Ml. 

Perrin  v.  Calhoun,  199. 

Perrin  v.  N.  V.  Cent.  R.  R,  837. 

Perrin  v.  Read,  318. 

Perine  v.  Perine,  794. 

Perine  v.  Dunn,  361. 

Perry  v.  Aldrieh,  67. 

Perry  v.  Binney,  841. 

Ferry  v.  Carr,  2,  852. 

Perry  v.  Grant    i 

Perry  v.  Kearnes.  882. 

Perry  v.  Kline,  52. 

Perry  v.  Logan,  642. 

Perry  v.  McHenry,  500. 

Perry  v.  Meddowcroft,  306. 

Perry  v.  Phillips,  562. 

Perry  v.  Trice,  770,  801. 

Person  e.  Merrick,  859. 

Persons  v.  Alsip,  359. 

Peter  r.  Beverly,  868,  468,  508,  511, 

512,  563,  • 
Peter  r.  Daniel,  617. 
Peter  v.  Kendal,  634. 
Peters  v.  Elkins,  824. 
Peters  v.  Florence,  336. 
Peters  r.  Jamestown,  329. 


Peters  v.  Jones,  700,  715. 
Peters  r.  Myers,  853. 
Peterson  v.  Clark,  351,  305. 
■n  v.  Edmonson,  194. 
Peterson  v.  McCullough,  698. 
Petteev.  Case,  312. 
Pettee  v.  H:i\ves,  843. 

ttee  o.  Hawkes,  600. 
Petters  v.  Petters,  800. 
Pettibone  v.  Edwards, 
i   Pettigrew  v.  Evansville,  615. 
I  Pettigrew  v.  Shirley,  717. 
i  Pettijohn  v.  '  148. 

1  Pettingill 

• 
-  671. 
1  Peytoi 

Pharis  o.  L 
.  Phelps  v.  Chesson,  277. 
Phelps  v.  Harris.  513. 
Phelps    .  I  294. 

Phelps 

Phelps  -  7. 

.  Cellogg,  7  IT. 
Phelps  v.  Phelps, 
Pheli 

:  .    .  I  tarard,  •"  1 1. 

Philadelphia  Ass'n  ■•.  \ 
Philadelphia  W.  &  B.   R.  R.  I 

Philad  .  a    B.   K.  EL.  Co.  *. 

Woi      ; 
Philhri  *,  6,  -12. 

Philhrick  v.  Spangler,  875. 
Philbrook  v.  Delano.  2 
Philips  v.  Crammond, 
Philli] 
Phillips  v.  Bank  of    I.xuistown  329, 

Phillips  ,:  Covert.  212. 
Phillips  v.  I 
Phillips  r.  Green,  702. 
Phillips  v.  Houston.  E 
Phillips  r.  Kent,  716. 
Phillips  v.  Pear 
Phillips  v.  Phillips.  401. 
Phillips  r.  Saundi 
Phillips  ».  Sherman  240,  U 


TABLE    OF    CASES    CITED. 


lxxix 


Phillips?;.  Smith,  77. 

Phillips  v.  Stevens,  18r»,  194. 

Phillips  v.  Thompson,  498. 

Phillips  v.  Tudor,  260. 

Phillips  v.  Winslow,  312. 

Phillip's  Academy  v.  King,  445,  461. 

Phinney  v.  Watts,  836. 

Phipps  v.  Hope,  875. 

Phipps  v.  Tarpley,  851. 

Phipps  v.  Lord  Ennismore,  503. 

Piatt  v.  Oliver,  252. 

Pibus  v.  Mitt'ord,  443,  434. 

Pickering  v.  Langdon,  890. 

Pickering  v.  Pickering,  883. 

Pickering  v.  Shotwell,  884. 

Pickering  v.  Stapler,  842. 

Picket  v.  Brown,  611. 

Picket  v.  Buckner,  366. 

Picket  v.  Dowdall,  739. 

Picket  v.  Jones,  329,  363. 

Pickett  v.  Peay,  148. 

Pico  v.  Colombet,  242,  243. 

Picot  v.  Page,  259. 

Pier  v.  Carr,  196. 

Pierce  v.  Brew,  801. 

Pierce  v.  Brown,  199. 

Pierce  v.  Chase,  246. 

Pierce  v.  Dyer,  621. 

Pierce  v.  Emory,  312. 

Pierce  v.  Farmer,  332. 

Pierce  v.  George,  4,  5. 

Pierce  v.  Hall,  310. 

Pierce  v.  Perrie,  299. 

Pierce  v.  Pierce,  500. 

Pierce  v.  Potter,  318,  362. 

Pierce  v.  Robinson,  307,  308. 

Pierce  v.  Sellick,  609. 

Pierce  v.  Trigg,  116. 

Pierce  v.  Warnett,  106. 

Pierce  v.  Williams,  135,  144. 

Pierre  v.  Fernald,  613. 

Piqrson  v.  Armstrong,  801,  803. 

Pierson  v.  Turner,  699. 

Pifer  v.  Ward,  120. 

Piggot  v.  Mason,  190. 

Piggott  v.  Stratton,  198. 

Pigot's  Case,  811. 

Pike  v.  Collins,  310. 


Pike  v.  Brown,  185. 

Pike  v.  Galvin,  727. 

Pike  v.  Goodnow,  332, 

Pillow  v.  Huberts,  696,  760,808. 

irvr.  Mitchell,  852. 
Pillsburv  v.  Bmythe,  333. 
Pirn  v.  Downing.  51  :. 
Bina  v.  Peck,  674. 
Pi    dall  v.  Trevor. 

Pingreye.  Watkins,  182. 

Pinhorn  v.  Soulier,  '. 

Pinkham  v.  Blair. 

Pinkney  v.  Burr 

Pinney  o.  Fellows,  507. 

Pinson  v.  Ivy,  1 

Pinson  v.  William?,   : 

Pintard  v.  Goodloe,  292. 

Piper  253. 

Pipher  v.  Li  .  099 

Piacataqua     Bridge    Co.    v.    N.    H. 

Bridge  Co.,  636. 
Pitkin  v.  Leavitt,  860. 
Pitman  v.  Collins,  855. 
Pitman  v.  Conner,  855. 
Pitts  v.  Aldrich,  337. 
Pitts  v.  Parker,  294. 
Pitts  v.  Pitts,  128. 
Pixley  v.  Huggins,  339. 
Planter's  Bank  v.  Davis,  107. 
Planter's  Bank  v.  Johnson,  756. 
Planter's  Bank  v.  Prater,  501. 
Playter  v.  Cunningham,  186. 
Pledger??.  Ellerbe,  122. 
Plimpton  v.  Converse,  601. 
Plenty  v.  West,  468. 
Pleydell  v.  Pleydell,  542. 
Plumb  v.  Cattaraugus  Ins.  Co.,  725. 
Plumb  v.  Tabbs,  275. 
Plumer  v.  Plumer,  2,  76. 
Plumleigh  v.  Cook,  190,  277. 
Plummer  v.  Russell,  805. 
Plunkett  v.  Holmes,  107,  421,  422. 
Plunkett  v.  Penson,  318. 
Plush  v.  Digges,  182. 
Plymouth  v.  Boston  Dispensary,  66» 
Plymouth  v.  Converse,  730. 
Poe  v.  Domec,  779. 
Pague  v.  Clark,  360. 


lxxx 


TABLE    OF    CASES    CITED. 


Poignard  v.  Smith,  326,  697,  715. 
Poindexter  v.  Henderson,  81. 
Poindexter  v.  McCannon,  305. 
Polk  v.  Faris,  433. 
Polk  v.  Rose,  760. 
Pollard  v.  Hogan,  834. 
Pollard  v.  Maddox,  828. 
Pollard  v.  Pollard,  148. 
Pollard  v.  Shaffer,  78,  190. 
Pollock©.  Ki-tn-n,  212. 
Pollock  v.  Stacey,  182. 
Polyblank  v.  Hawkins,  90. 
Pomeroy  o.  Bailey,  601,  802. 
Pomfret  v.  Bicord,  001. 
Pond  v.  Bergh,  538. 
Pond  v.  Clark,  335. 
Pond  v.  Johnson,  139. 
Pool  v.  Buffura,  876. 
Pool  v.  Blaikie,  106. 
Pool  v.  Hathaway,  887. 
Poole  v.  Bentley,  179. 
Poole  v.  Gerrard,  168. 
Poolo  v.  Lewis,  614. 
P  iol  r.  Longueville,  90. 
Poolo  v.   MorrU 

Poole  c.  Toole,  48 1. 
Poor  v.  Oakman,  789. 
Pope  v.  Biggs,  824 
Popo  r.  Devereux,  605. 
Pope  r.  Durant, 
Pope  v.  Garrard,  19 1. 
Popov.  Harkins,  199. 

Popo  r.  OTlara,  842. 

Pope  r.  Tow  n  »\'  Union,  611. 
Pope,  Ex'or,  o.  Elliott,  608. 
Popham  r.  Bamphill, 
Port  v.  Jackson,  - 
Porter  r.  Bank  of  Rutland,  606. 
Porter  o.  Bleiler, 
Porter*.  Bradley,  642. 
Porter  v.  Buckingham,  818. 
Porter  p.  City  of  lhiluique,  292. 
Porter  p.  Clements,  359. 
Porter  p.  Doby,  495. 
Porter  v.  King,  318. 
Porter  v.  Lafferty,  826. 
Porter  v.  Mayfleld,  199. 


Porter  v.  Nelson,  307. 
Porter  v.  PilLsbury,  362. 
Portis  v.  Parker,  101. 
Posey  v.  Cook,  468. 

186. 
Post  v.  Kearney, 

ter,  189. 
Posten  v.  Posten,  802. 
Poth  p.  Anstatt,  818. 
Potier  188. 

1". 'ttcr  i-.  Cromwell,  4. 
Potter  .115. 

Potter 
Potter 

.  H73. 
Potter 

. 
Pouco  v.  .Me Kir.' 
Pound  -*88. 

Powell  d.  Brand,  i 

■ 
P 

Powoej   ■■  i  i 
Powell  106. 

I  p.  Innes, 

Powell   V.  M.    A    B 

Powell    .  M 

Powell  r.  Powell, 
Powell  D.  Bich,  7 

.  E 

Powell  p.  Williams.  318,  89 

Power  P.   L 

Power 

I.  B  :-.■ 

Powers  -.  Mi  Pi  rran,  - 
Powershick  p.  Dennison,  358 
Payas  p.  W 

Pratt  p.  A  07. 

Pratt  P.  Hank  of 
Pratt  p.  Oolt, 
Pratt  r.  Brown.  746. 

Pratt  p.  Clerk,  292,  296. 
Pr:itt  v.  Ferrer,  218, 
p.  Felton,  148. 

Pratt  p.  Flamer. 


TABLE    OF    CASES    CITED. 


baud 


Pratt  v.  Levari,  183. 

Pratt  v.  McCullough,  876. 

Pratt  v.  Myers,  802. 

Pratt  v.  Ogden,  661. 

Pratt  v.  Oliver,  501. 

Pratt  v.  Skolfield,  829. 

Pratt  v.  Vim wvck,  1296. 

Pray  v.  Pierce,  607,  777. 

Preachers'  Aid  Boc.  t>.  Rich,  884. 

Presbrcy  v.  Presbrev,  25  1. 

Presclibaker  v.  Feaman,  808,  304. 

Prescott  v.  Ellingwood,  329. 

Prescott  v.  Hawkins,  755. 

Prescott  v.  Nevers,  696. 

Prescott  v.  Prescott,  161,  396 

Prescott  v.  Walker,  118. 

Prescott  v.  White,  617. 

Presley  v.  Stribling,  513,  514 

Prestman  v.  Baker,  814. 

Preston  v.  Briggs,  176. 

Preston  v.  Funnell,  542. 

Preston  v.  Hodges,  330. 

Preston  v.  Hull,  789. 

Preston  v.  Robinson,  242. 

Preston  v.  Wilcox,  509. 

Prettyman  v.  Watson,  68. 

Prevost  v.  Gratz,  501. 

Price  v.  Brayton,  6. 

Price  t>.  Carver,  296. 

Price  v.  Cutts,  303. 

Price  v.  Grover,  307. 

Price  v.  Johnston,  746. 

Price  v.  Pickett,  67,  70. 

Price  v.  P.  &  Ft.  W.  &  C.  R.  R,  815. 

Price  v.  Perrie,  309. 

Price  v.  Sisson,  397,  401,   434,   463, 

464,  494,  502. 
Price  v.  Tally,  664. 
Price  v.  Taylor,  434. 
Price  v.  Worwood,  278. 
Prickett  t;.  Parker,  663. 
Priest  v.  Cummings,  127. 
Primm  v.  Walker,  238,  260,  687. 
Prince  v.  Case,  651. 
Princeton,  etc.,  Co.  v.  Munson,  358. 
Prindle  v.  Anderson,  219. 
Pringle  v.  Dunn,  338,  816. 
Pritcbard  v.  Brown,  305,  780 


Probasco  v.  Johnson,  290,  292. 
Proctor  r.  Baker,  359. 
Proctor  v.  Hodgson,  601. 
Proctor  v.  Jennings,  614. 
Prodgors  r.  Langham,  802. 
Proffitt  r.  Henderson,  72,  71,  7»;. 
Proprietors,  etc.,  v.  McParland,  698. 
Proprietors,  etc.,  v.  Lowell,  10. 
Proprietors,  etc.,  v.  Grant,  281,  398, 

419,  421,  530,  532,  510,  543. 
Proprietors,  etc.,  v.  Prescott,  7Jti. 
Providence  Bank  v.  Billings,  759. 
Provost  v.  Provost,  876. 
Pryor  v.  Coggin,  887. 
Pue  v.  Pue,  605. 
Pugh  v.  A  rton,  7. 
Pugh  v.  Holt,  305. 
Pugh  v.  Pugh,  501. 
Pullen  v.  Kianhard,  468. 
Pullan  v.  C.  &  C.  Air    Line  R  R, 

824 
Purcell  v.  Goshorn,  794. 
Purdy  v.  Huntington,  321,  329. 
Purdy  v.  Purdy,  238,  500. 
Purfoy  v.  Rogers,  116,  397,  398,  530, 

536,  639,  540,  543. 
Putnam  v.  Bond,  827. 
Putnam  v.  Putnam,  885. 
Putnam  v.  Ritchie,  355. 
Putnam  v.  Tuttle,  843. 
Putnam  v.  Wise,  178,  201. 
Putnam   School  v.  Fisher,  510,  662, 

695. 
Putney  v.  Dresser,  238. 
Pyer  v.  Carter,  602. 
Pynchon  v.  Stearns,  69,  73 
Pyne  v.  Dor,  801. 

Q. 

Quackenboss     v.    Clarke,   182,    183, 

186. 
Queen  Ann's  Co.  v.  Pratt,  120. 
Quinby  v.  Higgins,  666. 
Quinby  v.  Manhattan  Co.,  4,  5. 
Quinn  v.  Brittain,  326. 
Quint  v.  Little,  326. 
Quirk  v.  Thomas,  818. 
Quarrier  v.  Peabody  Ins.  Co.,  327. 


lxxxii 


TABLE    OF    CASES    CITED. 


Quincy  v.  Cheesman,  324. 
Quick  v.  Ladborrough,  561. 

R. 

Rabsuhl  v.  Lack,  801. 
Kacklcy  v.  Sprague,  842. 
RadclifTs  Ex'r  v.  Mayor,  015. 
Raggen  v.  Avery,  810. 
llagland  v.  The  Justices,  etc.,  301 
Railroad  v.  Shurmeier,  833. 
Bairue  v.  Corbin,  148. 
Rakestraw  v.  Brewer,  326. 
Ralls  v.  Hughes,  181. 
Ralston  v.  Ralston,  116. 
Rainmelsburg  v.  Mitchell,  513. 
Ramsey  v.  Marsh,  49  1. 
Ramirez  o.  McCormaok,  609. 
Ramsdell  v.  Emory,  ■'  I 
Ramsdell  v.  Ramsdell,  398,  564. 
Ramsdell  p.  Wenworth,  888. 
Ramsey  '•.  Merriam, 
Ramsey  v.  Ramsey,  670. 
Randal  v.  Elwell,  2. 
Randall  p.  Hazelton, 
Randall  v.  EZeriger,  1  10. 
Randall  ,-.  McLaughlin,  600 
Randall  o.  Phillips,  601. 
Randall  p.  Randall,  848. 
Randall  r.  Bchrader,  •"-   l. 
Randebaugh  p.  -7  7. 

Randolph  p.  Middle 
Rands  p.  Kendall,  822. 
Rankin  r.  Harper,  500. 
Rankin  ».  Major,  •.  :>60. 

Rankin  p.  Mortimere,  308. 

Rapp  r.  Rapp,  538. 

Rapalyev.  Rapalye,  874. 

Ratlitr  r.  Ellis,  507. 

Ratlin"  r.  Davis,  860. 

Rawley  v.  Holland.  1 18, 

Rawlings  v.  Adams,  105. 

Rawlins  v.  Buttel,  128,  135. 

Rawson  p.  Oxbridge,  272,  863. 

Rawstron  p.  Taylor,  615. 

Hay  v.  Hill,  876. 

Ray  v.  Lynes,  611. 

Ray  v.  Murdock,  760. 

Bay  p.  Pong,  120. 


Bay  v.  Simmons, 
Baybold  p.  Raybold,  506. 
Raymond  p.  H'dborn, 
haymond  v.  Holden,  71">.  728,  794. 
Raymond  ?-.  Raymond. 
Raynham  r.  "Wilmarth,  138. 
Bay  nor  v.  Wilsor. 
Bea  v.  Copeland,  501. 
Read*.  Qilliard, 
:  r.  Leeds,  E 
Read  v.  Bobinsoi.. 
Read  v.  Steadmai 
Read    .  I. 

rig  r.  Weston,  • 
Ready  r.  Kearsh 

ner  p.  Edmondson,  v 
me  r.  Chambers,  101,  106,  115, 
794. 
Rector  ••.  Wangh, 
Reckhow  p.  Schanck,  212,  S 

1  p.  Bryan, 
Redfern  p.  Mid.. 

Red: 

B 
Redwine  p.  Br» 

-.  A',  en, 
Reed 

.  Dickerman,  117,  148 
Reed  v.  Parr,  7.  . 

■.  Kemp,  i 
Beed  p.  Lamar,  i 

Herd     ■.  M  : 

Beed..  Morrison,  11"'.  117,  124,  ISO, 

Beed  v. 

Beed  p.  Reynold-. 

Underbill, 
Reed  p.  Ward,  1*2, 
Reed  v.  Whitney,  117. 
Reader  v.  Barr,  7 
Reader  p.  Carey, 
R  eder  v.  Craig,  7 
Reese  v.  Chicago,  611. 

-  S 
Reeve  p.  Long.  807,  686. 
Reeve  p.  Scully. 

Begins  p.  Chorlej . 


TAL1EE    OF    CASES    CITED. 


lxxxiii 


Rehoboth  v.  Hunt,  240. 

Reickhoff  v.  Brecht,  501. 

Reid  v.  Kirk,  2. 

Reid  v.  Mulling  366. 

I:  id  v.  Stevenson,  122. 

Reid  v.  Reid,  507. 

Reillo  r.  Mayor,  376. 

Rcimer  v.  Steuber,  715. 

Reindera  v.  Koppleman,  564. 

Reinicker  p.  Smith,  242. 

Reiteabaugb  p.  Ludwick,  304,  325. 

Remington  v.  Uible  Soc,  885. 

Remington  v.  Lewis,  674. 

Remington  v.  Millard,  611. 

Ren  v.  Buckeley,  561. 

Renond  v.  Daskam,  190. 

Renziehausen,  v.  Keyser,  462,  504. 

Repp  v.  Repp,  202. 

Requa  v.  City  of  Rochester,  611. 

Rerick  v.  Kern,  653. 

Revalk  v.  Kraemer,  359. 

Revere  v.  Leonard,  831. 

Rex  v.  Corlett,  215. 

Reynard  v.  Spence,  116. 

Reynolds  v.  Canal  Bk.  Co.,  325. 

Reynolds  v.  Harris,  758. 

Reynolds  v.  Pitt,  279. 

Reynulds  v.  Reynolds,  128,  145,  385, 

296,  877. 
Rhim  v.  Ellen,  801. 
Rhinehart  v.  Stevenson,  361. 
Rhoades  v.  Parker,  311,  312. 
Rhode  v.  Louthain,  805. 
Rhodes  v.  Gardiner,  815. 
Rhodes  v.  MeCormick,  10,  161. 
Rhodes  v.  Otis,  653,  835. 
Rhodes  v.  Vinson,  887. 
Riblett  v.  Davis,  362. 
Ricard  v.  Saunderson,  332. 
Rice  v.  Barnard,  253. 
Rice  v.  Bird,  309. 
Rice  v.  Osgood,  411. 
Rice  v.  Parkman,  752. 
Rice  v.  Rice,  305,  311. 
Rice  v.  Sattervjliit,  542. 
Rich  v.  Bolton,  214,  215,  217. 
Rich  v.  Cockrell,  469. 
Rich  v.  Doane,  305,  306,  310. 


Rich  v.  Eichelberger,  371. 

Rich  o.  Johnson,  861. 

Rich  r.  Teilsdorf,  10. 

Richard  o.  Bent,  850. 

Richard  o.  Talbird,  8 

Richards  p.  Sol  ;')5,  368. 

Richards  v.  Delhi 

Richards  <-.  Learning,  294 

Richards  o.  liiller, 

Richards  <■•  Rose,  819. 

Richards  v.  Williams,  •">'.»'••. 

Richardson  v.  Bakt-r.  S 

Richardson  <-.  Bah   .  90  '. 

Richardson  v.  Bigelow,  842. 

Richardson  v.  Borden,  4. 

Richardson  v.  Boright,  792. 

Richardson  p.  Cambridge,  828. 

Richardson  v.  Copeland,  4,  5. 

Richardson  v.  Dorr,  850. 

Richardson  r.  Hildreth,  319. 

Richardson  v.  Ingleshy,  506. 

Richardson  v.  Landredge,  214,  215. 

Kkhardson  v.  Noyes,  538. 

Richardson  v.  Palmer,  828. 

Richardson  v.  Parrott,  361. 

Richardson  v.  Ridgeley,  294. 

Richardson  v.  Richardson,  878 

Richardson  v.  Skolfield,  117. 

Richardson  v.  Spencer,  501. 

Richardson  v.  Vermont  Cent.  R.  R., 
618. 

Richardson  v.  Wallis,  325. 

Richardson  v.  Wheatland,  411,  433, 
412. 

Richardson  v.  Woodbury,  303,  307. 

Richardson  v.  Wyatt,  116. 

Richardson  v.  Wyman,  127. 

Richardson  v.  York,  69,  82. 

Richardson  v.  Young,  326. 

Rickart  v.  Scott,  618. 

Richman  v.  Lippincott,  49. 

Richmond  v.  Aiken,  300,  326. 

Richmond  R.  R.  v.  Louisa  R.  R»,  636. 

Richmond  Mfg.  Co.  v.  Atlantic  De- 
laine Co.,  614. 

Ricketts  v.  Madeira,  333. 

Ricks  v.  Reed,  810. 

Riddle  v.  Bowman,  355. 


lxxxiv 


TABLE    OF    CASES    CITED. 


Kiddie  v.  Cutter,  495. 
Eiddle  v.  Littlefield,  176. 
Eider  v.  Kidder,  500. 
Eider  v.  Marsh,  254. 
Eider  v.  Smith,  610. 
Eider  v.  Thompson,  828. 
Ridgeleyv.  Johnson,  513. 
Eidgleyu.  Stilhvell,  177,  214. 
Ridgway  ».  McAlpine,  131. 
Bidgway  v.  Masting,  1 27. 
Eifeu.  Geysar,  508. 
Bifener  p.  Bowman,  790. 
Eigden  v.  Vallier,  237. 
Eiggw.  Sally,  642. 
Right  t>.  Darby,  214. 
Eigler  v.  Cloud,  1  <>■"■. 
Eigney  v.  Lovejoy,  880. 
Riley  r.  McCord, 
Eindge  v.  Baker,  620. 
Einehart  v.  Olwine,  261. 

Ringgold  r.  Ringgold,  513. 
Ring  v.  Billings,  842. 

Ring  v.  Mr1 

Ring  v.  Gray,  i 

Ring  p.  State  Ins.  Co.,  326. 

Ripka  r.  Sargeant,  389. 

Ripley  p.  Bates,  700. 

Ripley  v.  Wightman,  194. 

Ripley  ».  Yale,  700. 

Rising  v.  Stannard,  213,  214,  227. 

Ritger  p.  Parker,  861. 

Ritter's  Appeal,  891. 

Ritter  t>.  Phillipps,  332. 

Rivard  p.  "Walker,  796. 

Rivers  p.  Rivers,  886. 

Rivin  v.  Watson,  646. 

Roach  v.  Wadham,  559. 

Roarty  v.  Mitchell,  864,  806. 

Roath  r.  Driscoll,  615, 

Eoath  v.  Smith.  860. 

Robb's  Appeal,  192. 
rts  p.  Craft,  288. 

Roberts  p.  Crafty,  289. 
Roberts  i>.  Dauphin  Bank,  6. 
Roberts  v.  Fleming,  856,  366. 
Roberts  p.  Jackson,  812. 

Eoberts  p,  Kaar,  8  17. 
Roberts  v.  Levy,  853. 


Eoberts  v.  Littlefield,  326. 

Eoberts  v.  McMavhan,  307. 

Eoberts  v.  Morgan,  254,  569.  700. 

Eoberts  v.  Macori. 

Eoberts  v.  Eoberts,  828. 

Eoberts  v.  Eose,  - 

Ruber' 

Rob  "73. 

rts  r.  Sutherlin,    22, 
Eoberts  o.  Ware,  600. 

.  358,  877. 
-  v.  Whiting,  69,  108, 

Robertson  r.  Norri 

.rk,  310. 

Robert.~"!i  p.  Wilson,  411. 

Robie 

!. 
Robii  - 

';.  .    127. 

Rob:'  "-     . 

Robu  Iman,  388. 

Robii  .  i05. 

Robu 

Robinson  r.  Deering,  I 

Robins  ,246. 

Robin  ^,08. 

Bobinson  p.  Gould, 

Eobinson  r.  Graj . 

Robinson  ,-.  Hardcastle,  600. 

Robinson  p.  Lake, 

Eobinson  p.  Leavitt,  I  21. 

Eobinson  p.  I.  tfa  •  .  861. 

Eobinson  p.  Mauldin. 

Robinson  r.  Millar,  117,  145,  385,  886. 

Robinson  p.  Mo 

Robinson  r.  Perr. 

Robinson  r.  Pitt, 

Robinson  r.  Phillips,  099. 

Robinson  r.  Preswick,    . 

Robinson  r.  Robinson. 

Robinson  r.  Russell,  31. 

Robinson  p.  Ryu:  . 

Robinson  p.  Sampson,  336. 


TABLK    OF    CASKS    CITED. 


lxxxv 


Robinson  v.  Schley,  875. 
Robinson  v.  Urquhart,  290. 
Robinson  v.  "White,  833. 
Robinson  v.  Williams,  342. 
Robinson  v.  Willoughby,  804. 
Robison  v.  Goodman,  105,  116,  118. 
Rockhill  v.  Spraggs,  801. 
Rockingham  v.  Penrice,  67. 
Rockwell  v.  Baldwin,  831. 
Rockwell  v.  Brown,  801. 
Rockwell  v.  Hobby,  290. 
Rockwell  v.  Servant,  326. 
Rodgers  v.  Rawlins,  747. 
Rodgers  v.  Wallace,  559. 
Rodwell  v.  Phillips,  799. 
Roe  v.  Baldwere,  50,  398,   421,   422, 

537. 
Roe  d.  Bedford,  433. 
Roe  v.  Griffiths,  411,  412. 
Roe  v.  Dawson,  411. 
Roe  v.  Jones,  411. 
Roe  v.  Lees,  217. 
Roe  v.  Popham,  443. 
Roe  v.  Prideaux,  570. 
Roe  o.  Sales,  182. 
Roe  v.  Tranmarr,  782. 
Roe  v.  York,  790. 
Roffey  v.  Henderson,  652. 
Rogan  v.  Walker,  273,  303,  307,  308. 
Roger  v.  Carey,  812. 
Roger  v.  Diamond,  877. 
Roger  v.  Eagle  Fire  Ins.  Co.,  776. 
Roger  v.  Grazebrook,  323. 
Roger  v.  Grider,  251. 
Roger  v.  Hillhouse,  781,  801. 
Roger  v.  Humphries,  324. 
Roger  v.  Jones,  816. 
Roger  v.  McCauley,  500. 
Roger  v.  Rogers,  512. 
Roger  v.  Sawin,  613. 
Rogers  v.  Taylor,  618. 
Rogers  v.  Traders'  Ins.  Co.,  335. 
Rogers  v.  Woody,  127. 
Rogers  Loc.  Works  v.  Kelly,  494. 
Rohrer  v.  Stehman,  875. 
Roll  v.  Smalley,  359. 
Rollins  v.  Forbes,  362. 
Rollins  v.  Riley,  277. 


Roof  v.  Stafford,  792. 

Roosevelt  v.  Fulton,  663. 

Root  v.  Bancroft,  326,  372. 

Boot  o.  Crock,  727. 

Root  v.  Wheeler, 

Roper  v.  McCook,  296. 

Roper  v.  Halifax,  561. 

Rose  v.  Drayton,  890. 

Roseboom  v.  Van  Vechten,  60. 

Ross  v.  Adams,  434,  533. 

Ross  v.  Drake,  401. 

Ross  v.  Dysart,  187. 

Ross  v.  Garrison,  213. 

Ross  v.  Heintzen,  295. 

Ross  v.  Norwell,  307. 

Ross  v.  Roberts,  609. 

Ross  v.  Swaringer,  201. 

Ross  v.  Tarner,  850. 

Ross  v.  Tremain,  276. 

Rossr.  Wliiison. 

Ross  v.  Worth ington,  809. 

Rosser  v.  Franklin,  876. 

Rothwell  v.  Dewees,  259. 

Routledge  v.  Dorril,  417,  575. 

Rowan's  Creditors  v.  Rowan's  Heirs, 

503. 
Rowan  v.  Mercer,  359. 
Rowan  v.  Sharpe's  Rifle  M'g  Co.,  342, 

312,  355. 
Rowbotham  t>.  Wilson,  618. 
Rowe  v.  Granite  Bridge  Corp.,  835. 
Rowe  v.  Hamilton,  127,  141,  142. 
Rowe  v.  Williams,  191. 
Rowe  v.  Wood,  325. 
Rowell  v.  Klein,  71. 
Rowletts  v.  Daniel,  782. 
Rowton  v.  Rowton,  117. 
Roy  v.  Garnett,  433. 
Royall  v.  Lisle,  696. 
Royce  v.  Guggenheim,  195,  196. 
Royer  v.  Ake,  188,  192. 
Rubey  v.  Barnett,  546,  564. 
Rubej'  v.  Huntsman,  700. 
Ruckman  v.  Astor,  332,  353. 
Rucker  v.  Lambdin,  877. 
Rudisiles  v.  Rhodes,  890. 
Ruffing  v.  Tilton,  802. 
Ruggles  v.  Barton,  329. 


Ixxxvi 


TABLE    OF    CASES    CITED. 


Ruggles  v.  Lawson,  81  J. 

Rugbies  v.  Lesure,  651. 

Rugglea  v.  Williams 

Rundell  v.  Lakey, 

Runke  v.  Hanua,  12  t. 

Runkle  v.  Gates,  887. 

Runyan  p.  Mersereau,  301,  330,  333. 

Kupp  v.  Eberly, 

Rush  v.  Lewis,  569,  565. 

Russ  p.  Mebins,  499,  500,  567. 

Kuss,  542. 
Ru 

v.  Palls,  877. 

p.  Alard,  I9a 
i  v.  Allen, 

,148, 
Russell  v.  Blake,  856. 
Russell  v.  Clark's  Ex'ors,  601. 
Russell  v.  Collin,  779. 
Russell  p.  Davis. 
Russell  v.  Erwin, 
Russell  v.  Fabyan,  196,  196,  199,  200, 

213,  225. 
Russell  p.  Hubbard,  *>'>S. 

Russell  p.  Irwin,  696. 

Russell  p.  Jackson,  ''>08. 

Russell  p.  Lewis. 

Russell  '■■  Malonej .  698,  726. 

Russell  p.  Mixer.  887,  336. 

Russell  v.  Pistor, 

Russell  p.  Peytoi  . 

Russell  r.  Richards,  2. 

Russell  ».  Russell.  288. 

Russell  r.  Rumsey,  761. 

Russell  p.  Shields,  288. 

Russell  o.  Southard,  802,  S00,  307,  309, 

816,  827. 
Russell  -.  Sweesey,  B19. 
Russell  v.  Switzer,  506. 
Russell  r.  Wai;e. 
Rutherford  p.  Greene,  87, 
Rutherford  r.  Rutherford,  S77. 
Rutherford  •  ■.  Taylor,  726, 
Rutherford  p.  Williams,  864,  865. 
Ryan  o.  Brown,  8    I. 
Ryan  p,  Dox,   I 
Ryan  v.  Dunlap,  383. 
Ryder  v.  Innerarity.  T 


Ryeson  p.  Eldred,  " 
Ryeson  p.  Quackenbush,  lfl! 
:.nell.  V'9. 


Sackrille-West  p.  Holmesdale,  495. 
Sackett  r.  Sacket 

570. 
Safford  r.  Safford,  145,  385,  396. 
arch  Appeal,  •  I 

ir  p.  Williams.  ' 
Bt    Helen   Smelting  .  Tipping, 

•  hn  p.  Palmer,  1 

- 
81    I.     .  -     .   M 

lis  PublicS 

Bt.  L    liaH  .  .As.   .  w 
Salem  p.  E  :.. 

• 
Salleo  p,  Chan  : 
Salman     .  I 
Salmon    >.  B 
Salmon  p.  Hoffman,  9 
Salmon  p.  Smith.  17  t. 

Sail:. 

Salmons  v.  1 

Saltmarsh  p.  Smith,  115. 
_  Payne's  ( 

Sampson  p.  Rur-  - 

Sam;  -  I  '  '.. 

Sampson  p.  II  ddrnott 

Sampson  r.  6 
Samp-'        .  W' 
Samuels  p.  Bun  B1€L 

orn  r.  Ctough,  s_7. 

Sanborn  p.  11    w 
Sanl  '  11. 

Sanders  p.  Bolton, 
Sanders  r.  P 
Sanders  p.  Reed,  B&l. 
Sanders  r.  Vansickle*. 
Sande:-     I     .  W\  "'■ 
Sanderson  r.  Price.  "22. 
Sandford  p.  M.  Loan.  116,  1-9. 
Sanda  -.  Hughes,  181 


TABLE    OF    CASES    CITED. 


lxxxvii 


Sands  v.  Pfeiffer,  4. 

Sandford  v.  Harver,  218. 

Sandwith  v.  DeSIlver,  8G2. 

San  Francisco  v.  Fukle,  714 

Sargent  v.  Ballard,  509. 

Sarpent  v.  Howe,  3(J8. 

Sargent  v.  Parson,  243. 

Sargent  v.  Simpson,  745. 

Sarles  v.  Sarles,  CO,  73,  74,  7G,  77. 

Sartill  v.  Robinson,  10"). 

Sauletv.  Sheppard,  682,  685. 

Saunders  v.  Edward*,  495. 

Saunders  v.  Evans,  671. 

Saunders  v.  Frost,  334,  325,  356,  360. 

Saunders  v.  Newman,  605,  616. 

Saunders  v.  Schmaelzic,  611. 

Savage  v.  Dooley,  117,  318. 

Savage  v.  Hall,  337,  321,  329. 

Savage  v.  Murphy,  802. 

Savery  v.  Browning,  812 

Saville  v.  Saville,  66. 

Sawyer  v.  Kendall.  703,  714. 

Sawyer  v.  Peters,  741. 

Sayre  v.  Hughes,  500. 

Sayre  v.  Townsend,  500. 

Sales  v.  Cockrill,  714. 

Scales  v.  Maude,  506. 

Scanlan  v.  Turner,  129. 

Scanlan  v.  Wright,  816. 

Scatterwood  v.  Edge,  413,  414,  532. 

Scatterfield  v.  John,  509. 

Schaffer  v.  Kettell,  885. 

Schall  v.  Williams  Valley  R.  R.,  717. 

Schedder  v.  Sawyer,  746. 

Schell  v.  Stein,  816. 

Schenk  v.  Conover,  358. 

Schenk  v.  Evoy,  242. 

Schenk  v.  Schenk,  613,  573. 

Schermerhorne  v.  Myers,  275. 

Scherflin  v.  Carpenter,  198. 

Schilling  v.  Holmes,  187, 195, 196,  218. 

Schley  v.  Lyon,  460. 

Schmitz  v.  Schmitz,  839. 

Schmucker  v.  Reel,  884. 

Schneider  v.  Koester,  858. 

Schofield  v.  Hornstead  Co.,  850. 

School  District  v.  Benson,  740. 

School  District  v.  Lynch,  697,  714. 


Schrack  v.  Tubler,  701,  714. 
Schuisler  v.  Am.'s,  198. 
Schultz's  Appeal,  884. 
Schumaker  ».  Schmidt,  886. 

Schuyler  r.  Smith,  --•">. 

Schuylkill  Co.  r.  Thoburn,  318. 

Schuylkill  R.  R.  v.  Schmoele,  187,  195. 

Scituato  r.  Hanover,  566. 

Scofield  v.  Lockwood,  829. 

Scott  r.  Douglass,  728. 

Scott*.  Fields,  310. 

Scott  v.  Freeland,  365. 

Scottv.  Frink,  8 

,110,  242,  243. 
Scott  v.  Hancock,  134. 
Scott  v.  Henry,  r.04,  806,  334. 
Scott  v.  Lunt,  190,  192,  644. 
Scott  v.  McFarland,  304,  326. 
Scott  v.  Price,  538. 
Scott  v.  Perkins,  662. 
Scott  v.  Purcell,  794. 
Scott  v.  Rand,  609. 
Scott  v.  Scarborough,  605. 
Scott  v.  Umbarger,  501. 
Scott  v.  Turner,  3-30. 
Scott  v.  Wharton,  351. 
Scott  v.  Young  Men's  Soc,  760. 
Scratton  v.  Brown,  687. 
Screven  v.  Gregorie,  609. 
Scrugham  v.  Wood,  813. 
Scull  v.  Reeves,  506,  510. 
Seagram  v.  Knight,  82. 
Sears  v.  Dixon,  305. 
Sears  v.  Hanks,  163. 
Sears  v.  Dillingham,  878. 
Sears  v.  Russell,  37,  398,  542.  544. 
Seaton  v.  Jamison,  143. 
Seaton  v.  Twyford,  358. 
Seaver  v.  Durant,  325,  357. 
Seaward  v.  Willock,  404. 
Secor  v.  Pestana,  217,  218. 
Sedgewick  v.  Laflin,  37,  363,  574. 
Sedgwick  v.  Hollenback,  851. 
Seers  v.  Hind,  184. 
Serbert  v.  Butz,  542. 
Seigle  v.  Louderbaugh,  696. 
Selby  v.  Alston,  512. 
Selden  v.  Del.  and  Hud.  Canal,  661. 


lxxxviii 


TABLE    OF    CASES    CITED. 


Selden  v.  Virmilyea,  504. 
Sellers  v.  Stulcup,  306. 
Sellman  v.  Bowen,  143. 
Seminary  v.  Kellogg,  542. 
Semple  v.  Bard,  339. 
Senhouse  v.  Christian,  608. 
Scnnett  v.  Bucher,  174. 
Sargeant  v.  Steinberger,  251. 
Seville  v.  Blackett,  561. 
Sewell  v.  Cargill,  466. 
Sewell  v.  Denny,  499. 
Sexton  v.  "VVheaton,  802. 
Seymour  v.  Courtenay,  843. 
Seymour  v.  Darrow,  310. 
Seymour  v.  Davl  -.  88  L 
Seymour  v.  Lewis,  598. 
Shackelford  p.  Hall,  276. 
Shackelford  v.  Bailey,  242. 
Shaeffer  v.  Chambers,  325,  356. 
Shaeffer  v.  Corbett,  878. 
Shaeffer  v.  Ward,  128. 
Shall  v.  Biscoe,  292,  296. 
Shanks  p.  Lucas,  663,  746. 
Shannon  v.  Burr,  182. 
Shannon  v.  Marsells,  871. 
Shnpleigh  v.  Pilsbury,  466,  483,  411, 
777. 

Sharkey  v.  Sharkey,  303. 
Sharon  Iron  Co.  v.  City  of  Erie,  278, 
863. 

Sharp  v.  Brandon,  695,  696. 

Sharp  v.  Petit,  142,  14:5. 

Sharpe  v.  Goodwin,  501. 

Sharpe  v.  Scarborough,  359. 

Sharpley  v.  Jones,  115. 

Sharpsteen  v.  Tillon,  663. 

Shaumburg  v.  Wright,  790. 

Shaw  v.  Cunliff,  533. 

Shaw?-.  Beebe,  781. 

Shaw  v.  Breese,  665. 

Shaw  v.  Farnsworth,  179. 

Shaw  v.  Ilayward,  814. 

Shaw  v.  Ilersey,  245. 

Shaw  v.  Hoadley.  352,  322,  359,  866. 

Shaw  v.  Loud,  798. 

Shaw  v.  Neale,  842. 

Shaw  v.  Norfolk  Co.  R.  R.,  368. 

Shaw  v.  Poor,  816. 


Shaw  v.  Read,  500. 

Shaw  v.  Russ,  127. 

Shaw  t>.  Shaw,  8S3. 

Shaw  v.  Spencer,  499,  501. 

Shaw  v.  Weight,  434,  467,  504. 

Shea  v.  Tucker,  600. 

Sheafe  v.  Gerry,  310,  828. 

Sheafer.  O'Neil,  138,  115. 

Shearer  >:.  Shearer,  253. 

Shearer  v.  Woodbum, 

Sheckell  v.  Hopkins,  309,  310. 

Sheets  v.  Selden,  186,  W.  194. 

Sheffield  c  Lovering,  671. 

Sheffield  r.  Orrery,  418,  423,  419,424, 

BheffletOO  V.  Nelson,  714. 

Shehan  v.  Barmtt.  764 

Shelby  v.  Shelby,  663. 

Sheldon  v.  Peterson,  359. 

Sheldon  r.  Wr 

Shellry  r.  Wright, 

i 

ShelleV-  Cat   .H7,  433,  434. 
Bhelton  P.  Armor,  808. 

i  ...  Carroll, 
Shelton  r.  Codman,  1 
Bhelton  v.  Lewis,  601. 
Shelton  r.  liaapin,  B82, 
Shelton  r.  Bhelton,  507. 
Bhelton's  Case,  812. 
Bhepard  p.  Bpaulding,  198. 
Sheperd  v.  Adam-,  871. 
Shephard  p.  Little,  443. 
Shephard  p.  Sin  [.hard,  544. 
Shepherd  v.  Howard,  794. 
Shepherd  p.  Ingram,  ■■ 
Shepherd  <•.  BIcEren,  506,  508.  609, 

510. 
Shepherd  p.  Boss, 
Shepherd  p.  White,  500. 
Sheppard  v.  Comm'rs  Boss  to.,  758. 
Bheppard  p.  Pratt,  326. 
Shepperd  p.  Blurdock, 
Sherata  r.  Nleodemos,  295. 
Sherburne  v.  Jones,  71. 
Sheridan  p.  Welch,  826. 
Sherman  p.  Abbott,  821. 
Sherman   p.    Champlain   Trans.  Co., 

200. 


TABLE    OF    CASES    (  I  TED. 


Ixxxix 


Sherman  v.  Dodge,  459,  494,  615. 

Sherman  v.  McKeon,  837. 

Sherman  v.  AVilliams,  196. 

Sherred  v.  Cisco,  620. 

Sherwood  v.  Barlow,  781. 

Sherwood  v.  Burr,  599. 

Sherwood  v.  Saxton,  368. 

Shield  v.  Batts,  115. 

Shields  v.  Lozier,  199,  322,  333. 

Shiels  v.  Stark,  242. 

Shin  v.  Frederick?,  337,  321. 

Shine  v.  "Wilcox,  74. 

Shippin's  Heirs  v.  Clapp,  563. 

Shirkey  v.  Hanna,  300. 

Shirley  v.  Ayres,  814. 

Shirley  v.  Congress  Sugar  Refinery, 

292. 
Shirley  v.  Fearne,  809. 
Shirley  v.  Shirley,  92,  136,  296,  469. 

Shirrasv.  Craig,  310,  841. 

Shirtz  v.  fahirtz,  142. 

Shirtz  v.Dieffenback,  292. 

Shively  v.  Jones,  359. 

Shoemaker  v.  Smith,  500. 

Shoemaker  v.  Walker,  116,  117,388. 

Shoenberger  v.  ILickman,  815. 

Shoenberger  r.  Zook,  812. 

Shores  v.  Charley,  107. 

Shortall  v.  Hinckley,  795. 

Shotwell  v.  Harrison,  816. 

Shotwell  v.  Smith,  324. 

Shove  v.  Pincke,  803. 

Shrewsbury's  (Countess  of)  Case,  789. 

Shreeve  v.  Stokes,  618. 

Shrunk  v.  Schuylkill  Co.,  835. 

Shulenberg  v.  Harriman,  277. 

Shumway  v.  Collins,  191, 196. 

Shurtz  v.  Thomas,  130. 

Sibley  v.  Holden,  837. 

Sibley  v.  Smith,  760. 

Sicard  v.  Davis,  695,  807. 

Siceloff  v.  Redman,  433. 

Sidmouth  v.  Sidmouth,  500. 

Siemon  v.  Schurck,  500,  501. 

Sigourney  v.  Eaton,  241. 

Silloway  v.  Brown,  255. 

Silsby  v.  Allen,  216. 

Silsby  v.  Bullock,  881. 


Silvester  v.  Wilson,  434. 

Simers  v.  Salters,  19'.». 

Simkin  v.  Ashurst,  2\1G. 

Simmons  v.  Johnson,  841. 

Simmons  v.  Norton,  69. 

Simmons  v.  Synes,  609. 

Simms  v.  Harvey,  789. 

Simonds  v.  Simonds,  642. 

Simonton  r.  Gray,  117,  146,  326. 

Simonton's  Estate,  815. 

Simpson  v.  Amnions,  238,  260. 

Simpson  v.  Bowden,  389. 

Simpson  v.  Downing,  714. 

Simpson  v-  Mundee,  292,  801. 

Simpson  v.  Simpson,  876. 

Simsv.  Conger,  413. 

Sims  v.  Hundley,  363. 

Sims  v.  Irvine,  746. 

Sinclair  v.  Arraitage,  312. 

Sinclair  v.  Jackson,  513,  724. 

Sinclair  v.  Loundes,  517. 

Singleton  v.  Singleton,  134. 

Singer  Mfg.  Co.  v.  Rook,  810. 

Sisk  v.  Smith,  115. 

Siter  v.  McClanachan,  341. 

Skaggs  v.  Nelson,  294. 

Skeel  v.  Spraker,  337. 

Skinner  v.  Buck,  359. 

Skinner  v.  Dayton,  279. 

Skinner  v.  Fulton,  666. 

Skinner  v.  Miller,  307. 

Skinner  v.  Wilder,  7. 

Slater  v.  Dangerfield,  434. 

Slater  v.  Jepherson,  697. 

Slater  v.  Rawson,  693,  698,  849. 

Slaughter  v.  Detiney,  163. 

Slaughter  v.  Foust,  359,  362. 

Slayton  v.  Mclntyre,  333. 

Slee  v.  Manhattan  Co.,  312,  355. 

Slice  v.  Derrick,  695,  697. 

Sloane  v.  McConahy,  461. 

Sloane  v.  Whitman,  139. 

Slocum  v.  Marshall,  506. 

Slocum  v.  Seymour,  799. 

Slowey  v.  Mc  Murray,  305,  306,  307. 

Small  v.  Proctor,  121. 

Smart  v.  Morton,  618. 

Smiley  v.  Sambill,  887. 


xc 


TABLE    OF    CASES    CITED. 


Smiley  v.  Van  Winkle,  182,  197. 
Smiley  v.  Wright,  117,  130. 
Smith  v.  Adams,  616. 
Smith  v.  Addleman,  136. 
Smith  v.  Allen,  253,  801,  802. 
Smith  v.  Ankrim,  104. 
Smith  v.  Baldwin,  148. 
Smith*.  Bell,  398,  546,562 
Smith  v.  Bowen,  50G. 
Smith  v.  Brannan,  277. 
Smith  v.  Brinker,  182. 
Smith  v.  Burtis,  693. 
Smith  v.  Burnham,  501. 
Smith  v.  Chapin,  71  1. 
Smith  v.  Chapman,  488,  700. 
Smith  v.  Clyfford,  422,  124. 
Smith  v.  Columbia  Ins.  Co.,  327. 
Smith  v.  Dcntli,  561. 
Smith  v.  Dickenson, 
Smith  v.  Doe,  368. 
Smith  v.  Dolby,  876. 
Smith  u.Dyer,  819,  829,  860. 

S  1 1 i tli  v.  Estell,  169. 

Smith  v.  Eustis,  117. 

Smith  v.  Floyd,  693. 

Smith  v.  Follnnsbee,  81. 

Smith  r.  Ford,  " 

Smith  r.  Frederick,  782. 

Smith  v.  Frost,  601. 

Smith  v.  Goodwin,  351. 

Smith  v.  Goulding,  I 

Smith  v.  Hamilton,  831. 

Smith  v.  Harrington,  494,  615. 

Smith  v.  Hosmer,  695,  697. 

Smith  v.  Hovt,  861. 

Smith  v.  Hunt,  810. 

Smith  v.  Hunter,  688,  541. 

Smith  v.  Ingram,  696, 

Smith «.  JackBon,  116,  188,  253. 

Smith  v.  J e Witt,   69. 

Smith  r.  Johns.  822. 

Smith  ?-.  Johnston,  709. 

Smith  v.  Kelley,  833,  334. 

Smith  v.  Kelly,  664. 

Smith  p.  Kendick,  613. 

Smith  v.  King,  700. 
Smith  v.  Knight.  260. 

Smith  v.  Ladd,  843. 


Smith  r.  Levinus,  835. 

Smith  v.  L 

Smith  r.  Littlefield.  225,  227. 

Smith  v  Manning,  332,  334. 

Smith  v.  Mapleba.  k.  182. 

Smith 

Smith  p.  MeChesney,  890. 

Smith  r.  -Metcalf. 

Smith  •.  Mitchell, 

Smith  <-.  M 

Smith  v.  Moodus  Water  Co.,  727. 

Smith  r.  Niver,  198. 

Smith  r.  Newton. 

Smith  r.  Packard, 

Smith    .  P 

Smith  r.  l'atton,  500. 

Smith  v.  1' 

Smith  p.  r        ■   -  B  ink,  811. 

Smith  a.  Potter,  812. 

Smitl  74. 

Smith  v.  Prewitt,  832. 

Smith  p.  Pri( 

Smitl  .  364. 

Smith  p.  Putnam,  188. 

Smith  i . 

Smith  a.  8  .  *82 

Smith  v.  Bhepard, 

Smith    .  ^ 

Smith  p.  Smith.-  -'.336,366, 

600.  - 
Smith  d.  Bo.  BoyaltOB  Bank,  816. 
Smith  p.  Sprague, 

Smith  v.  Stevenson,  607. 
Smith  p.  Stewart,  216. 
Smith  p.  Strahnii,  500. 
Smith  p.  Bto 

Smith  r.  Bweetaor,  818. 
Smith  r.  Thaekorah.  618. 
Smith  p.  Vincent. 
Smith     .  W 
Smith  r.  W<  I'.s.  16L 
Smith  p.  5 

Smither  r.  Willock,  401. 
Bmithwick  p.  Blliaoa,  6. 
Smithwick  p.  Jordan, 
Bmyles  p.  Hastings,  I  I 
Smythe  p.  Tankersley,  201. 
Snape  p.  Turtoa, 


TABLE    OF    CASES    CITED. 


XC1 


Snedekcr  v.  Warring,  4,  6. 
Sneed  v.  Osborn,  738. 
Snoddy  v.  Kreutch,  H94. 
Snow  v.  Chapman,  840. 
Snow  v.  Cutter,  632. 
Snow  v.  Stevens,  318. 
Snowden  v.  Wllas,  65L 
Snowhill  v.  Snowhill, 
Snowman  v.  Harford,  359. 
Snydamr.  Bartle.  862. 
s  i  •,  der  v.  Lane,  853. 

rr.  Riley,  192. 
Snyder  v.  Snyder,  66,  821,  757. 

Soliier  v.  Coffin,  7'.'">. 

Sohier  v.  Eldridge,  68. 

Sohier  v.  Mass.  Gen.  Hospital,  752. 

Sohier  v.  Trinity  Church,  756. 

Solomon  v.  "Wilson,  312. 

Somers  v.  Pumphrey,  812. 

Somers  v.  Schmidt,  860. 

Somersworth  Savings  Bank  v.  Rob- 
erts, 310. 

Somes  v.  Brewer,  802. 

Somes  v.  Skinner,  300,  727,  730. 

Soper  v.  Guernsey,  311,  312. 

Sorsby  v.  Vance,  875. 

Souder  v.  Morrow,  818. 

Soule  b.  Albee,  359. 

Soule  v.  Barlow,  698. 

South  Cong.  Meeting  House  v.  Hilton, 
178. 

Southard  v.  Cent.  R.  R.  Co.,  277,  880. 

Southcote  v.  Stowell,  482. 

Southern  v.  Mendum,  330,  333. 

Southerland  v.  Stout,  855. 

Southern  Life  Ins.  Co.  v.  Cole,  813. 

Souther  v.  Porter,  260. 

Souther  v.  Miller,  368. 

Souverly  v.  Arden,  811. 

Soward  v.  Soward,  877. 

Spader  v.  Lawler,  342. 

Sparhawk  v.  Bogg,  318,  795. 

Sparhawk  v.  Sparhawk,  509. 

Sparhawk  v.  Wills,  325,  355. 

Sparks  v.  State  Bank,  4,  339. 

Span-  v.  Andrews,  853. 

Spaulding  v.  Chicago  R.  R.,  79. 

Spaulding  v.  Hallenbeck,  332. 


Spaulding  r.  Warren,  696. 

Spear  v.  Fuller,  191. 

Speer  v.  Evans,  816. 

Speer  v.  Speer,  741. 

Spellman  v.  Curtenius,  761. 

Spencer.  Aldrich,  871. 

Spencer  d.  Carr,  796. 

Spencer  <■.  Lewis,  71. 

Spencer  v.  Hartford,  362. 

Spencer  v.  Higgina,  883. 

Spencer  v.  Spencer,  513. 

Spencer  v.  Steadman,  307. 

Spencer  r.  West« >n,  131. 

Spencer's  Case,  190. 

Sperry  a.  Sperry,  198,  277. 

Spiller  v.  Scribner,  829. 

Spoonerv.  Lovejoy,  506. 

Sprague  v.  Baker,  852. 

Sprague  v.  Graham,  332. 

Sprague  v.  Quinn,  213. 

Sprague  v.  Luther,  876. 

Sprague  v.  Woods,  443,  782. 

Spring  v.  Russell,  835. 

Springer  r.  Berry,  445,  600. 

Springer  v.  Congleton,  885. 

Springfield  v.  H  irris  614. 

Springfield  Fire  Ins.  Co.  v.  Allen,  327. 

Spurgeon  v.  Collier,  309. 

Squier  v.  Morris,  805. 

Squire  v.  Harder,  443,  500. 

Squires  v.  Huff,  214. 

Staats  v.  Ten  Eyck,  861. 

Stafford  v.  Van  Rensselaer,  339,  292. 

Stall  v.  Cincinnatti,  516. 

Stambaugh  v.  Smith,  861. 

Stamper  v.  Griffin,  700. 

Stanard  v.  Eldridge,  850. 

Stanberry  v.  Sillon,  760. 

Stancell  v.  Kenan,  881. 

Staniford  v.  Fullerton,  260. 

Stanley  v.  Beatty,  330. 

Stanley  v.  Colt,  280,  504,  503. 

Stanley  v.  Greene,  827. 

Stanley  v.  Kempton,  329. 

Stanley  v.  Stanley,  532. 

Stanley  v.  Stocks,  371. 

Stanley  v.  Valentine,  336. 

Stansell  v.  Roberts,  294. 


XC11 


TABLE    OF    CASES    CITED. 


Stansfield  v.  Habergham,  487,  499. 

Stansfield  v.  Hobson,  326. 

Stansfield  v.  Portsmouth,  7. 

Stark  v.  Brown,  322,  359. 

Stark  v.  Coffin,  837. 

Stark  v.  Hunton,  148. 

Stark  v.  McGowen,  633. 

Stark  v.  Mercer,  862. 

Starkweather  t>.  Bible  Soc,  885. 

Starling  v.  Price,  885. 

Starr  v.  Ellis,  886. 

Starr  v.  Moulton,  513. 

Starr  v.  Starr,  878. 

State  v.  Atherton,  611. 

State  v.  Batchclder,  747. 

State  v.  Bonham,  5. 

State  v.  Brown,  385. 

State  v.  Carver,  611. 

State  v.  Chrisman,  815. 

Stater.  Crutchfield,  711. 

State  v.  Gilmanton,  833. 

State  v.  Griffith,  884. 

State  v.  Guilford,  513. 

State  v.  Northern  C.  R,  EL  Co.,  2. 

State  v.  Peck,  80S 

State  v.  Pottmeyer,  2. 

State  v.  Troop,  375. 

State  v.  Trask,  482. 

State  v.  Warren,  882. 

State  Bank  r.  Campbell,  339. 

Steacy  v.  Rice,  460,  494,  504. 

Stead's  Ex'rs  v.  Course,  760. 

Stears  v.  Hollenbeck,  826. 

Stearns  v.  Godfrey.  200,  281. 

Stearns  v.  Harris,  277. 

Stearns  v.  Hendersass.  727. 

Stearns  v.  Janes,  599. 

Stearns  v.  Quincy  Mut.  Ins.  Co.,  327. 

Stearns  v.  Swift,  794. 

Stedman  v.  Gassett,  199,  213. 

Stedman  v.  Priest,  885. 

Stedman  v.  Smith,  697. 

Steedman  p.  Hilliard,  695. 

Steel  v.  Cook,  880. 

Steel  v.  Frick,  201 

Steel  t>.  Johnson,  7  17. 

Steel  v.  Steel,  92,  802. 

Steel  v.  Taylor,  882. 


Steele  v.  Magie,  126. 
Steere  v.  Steere,  507. 
Stegall  v.  Stegall,  128. 
Stehman  r.  Stehman,  538. 
Steiner  v.  Coxe,  740. 
Stephens'  Appeal,  292. 

!i'-ns  v.  Bridges,  197. 
Stephens  r.  Hume,  106. 
Stephens  v.  Huss,  814. 

tor,  885. 
Stephens  o.  McCortnick,  700. 
Stephens  v.  Mutual  Ins.  Co.,  327. 

Stephens  <•.  Sherrod,  124,  310. 
Walker.  - 
orison  r.  Doe,  6C3. 
Stephi-:  joi     .Hail  ee,  646. 
Stephe  S  674. 

;:  r.  Thompson,  500. 
Sterling  p.  Baldwin,  799. 

Pest,  354 
Sterling  p.  Wor  2,664 

Sterry    .  A 

on  d.  Daw,  841. 

.    .  1'  ittei . 

Stevens  p.  Campbell,  359. 

"1.  375. 

Stevens    .  B    [isto  r,  B  18,  I 
Stevens  p.  AtcNamara, 
Stevens  p.  Morse,  - 
Stevens  p.  Nashua,  611. 
Stevens  p.  Reed,  189. 
Btevens 

Stevens  r.  Thompson,  242. 
Stevens  p.  Van  Clew.  E 
Stevenson  P.  Black,  8  1ft 
Stevenson  t\  Huddles,  n,  876. 
Stevenson  p.  Jacobs,  542. 
Stevenson  v.  Lambard.  1>2. 
Stevenson  p.  Leslie,  514. 
Stewart  r.  Barrow,  822, 
Stewart  r.  Bra  ly,  88,  276. 
Stewart  P.  Caldwell.  296. 
Stewart  r.  Chadwick,  601,  51C  SU, 
Stewart  p.  Clark, 
Stewart  r.  Collier, 


TABLE    OF    CASES    CITED. 


XCJLLL 


Stewart  v.  Crosby,  333. 
Stewart  v.  Doughty,  70,  71,  799. 
Stewart  v.  Drake,  852. 
Stewart  v.  Fitch,  884 
Stewart  v.  Harriman,  878. 
Stewart  v.  Hutchins,  305. 
Stewart  v.  Lispenard,  881. 
Stewart  v.  Mackey,  163. 
Stewart  v.  McMartin,  115. 
Stewart  v.  McSweenev,  795. 
Stewart  v.  Pettus,  511. 
Stewart  v.  Roderick,  199. 
Stewart?.  Rogers,  501,  802. 
Stewart  v.  Stewart,  875. 
Stewart  v.  Weed,  813. 
Stewart  v.  Wood,  296. 
Stiles  v.  Brown,  812. 
Still  well  v.  Hubbard,  813. 
Stillwell  v.  Knapper,  275. 
Stimpson  v.  Butterman,  238. 
Stimpson     v.     Thomastown     Bank, 

122. 
Stinebaugb  v.  Wisdom,  106. 
Stinson  v.  Ross,  318,  757. 
Stinson  v.  Sumner,  115,  127. 
St.  John  r.  Benedict,  443. 
Stobie  v.  Dills,  198. 
Stockbridge  Iron  Co.  v.  Hudson  Iron 

Co.,  827. 
Stockport  Waterworks  Co.  v.  Potter, 

613. 
Stockton  v.  Williams,  745,  795. 
Stockton  v.  Dundee  Mfg.  Co.,  361. 
Stockwell  v.  Campbell,  4. 
Stockwell  v.  Hunter,  10. 
Stoddard  v.  Gibbs,  107. 
Stoddard  v.  Hart,  290,  311,  333. 
Stoever  v.  Stoever,  302,  303,  367. 
Stoken  v.  McKibbin,  105. 
Stokely  v.  Gordon,  883. 
Stokes  v.  Hewsingers,  605. 
Stokes  v.  O'Fallon,  888. 
Stokes  v.  Tilly,  875. 
Stone  v.  Ashley,  809. 
Stone  v.  Bishop,  513. 
Stone  v.  Ellis,  279. 
Stone  v.  Harrison,  533. 
Stone  v.  Griffin,  508,  884. 


Stone  v.  Hackett,  506. 

Stone  v.  Hooker,  855. 

Stone  v.  Lane,  341. 

Stone  v.  Locke,  360. 

Stone  v.  Montgomery,  794. 

Stone  v.  Myers,  802. 

Stone  v.  Patterson,  324. 

Stone  v.  Seymour,  356. 

Stone  v.  Sprague,  213. 

Stoner  v.  Hansicker,  5. 

Stoner  v.  Shultz,  £25,  371. 

Stool foos  r.  Jenkins,  106. 

Stoppelbein  v.  Shultz,  117. 

Storert7.  Freeman,  834/ 

Storn  t7.  Mann,  81. 

Story  v.  Saunders,  254. 

Stoughton  17.  Leigh,  10,  75,  116,  185» 

137,  144. 
Stout  17.  Merrill,  199. 
Stover  t7.  Bo.-well,  674. 
Stover  v.  Eydeshimer,  530,  800. 
Stover  v.  Kendall,  890. 
Stover  t7.  Jack,  834. 
Stover  v.  Wood,  336. 
Stow  v.  Russell,  194. 
Stow  17.  Tifft,  117,  124. 
Stow  t;.  Wyse,  728. 
Stowell  v.  Lincoln,  617. 
Stowell  v.  Pike,  351,  323. 
Straat  17.  Urig,  489. 
Strafford  v.  Wentworth,  67. 
Strahan  v.  Knowles,  618. 
Stratton  v.  Gold,  295. 
Strauss's  Appeal,  292. 
Streaper  u.  Fisher,  190. 
Stringer  v.  Young,  746. 
Strobe  v.  Downer,  361. 
Strode  v.  Russell,  320. 
Strong  17.  Allen,  325. 
Strong  17.  Blanchard,  325. 
Strong  17.  Bragg,  1 15. 
Strong  17.  Clem,  115. 
Strong  v.  Converse,  124,  332,  336. 
Strong  17.  Gregory,  576. 
Strong  v.  Ins.  Co.,  327. 
Strong  v.  Stewart,  307,  308. 
Strother  v.  Law,  363,  354. 
Strother  17.  Lucas,  745. 


XC1V 


TABLE    OF    CA8ES    CITED. 


Stroud  v.  Casey,  359. 

Stroud  v.  Springfield,  832. 

Stubbs  v.  Sargon, 

Stubblefield  v.  Boggs  740. 

Stucker  v.  Stucker,  300. 

Stump  v.  Findlay,  64. 

Stumpfer  v.  Robert-,  500. 

Sturgis  v.  Corp.,  409. 

Sturgis  v.  Ewing,  1 15. 

Sturtevant  v.  Jaques,  499. 

Sturtevant  v.  Sturtevant,  507. 

Stuyvesant  ».  Hall,  840, 

Stuyvesant  v.  Mayor  of  New  York, 

272,  276,  277. 
Suarezc.  Pumpelly,  506,  509. 

uffield  17.  Brown,  601. 
Suffolk  Ins.  Co.  r.  Boyden, 
Sugden  v.  Power, 
Sullivan  v.  Endow,  2!  t.  216. 
Sullivan  r.  McLenans,  500. 
Sullivan  v.  Sullivan.  S7V. 
Sumner  v.  Conant,  8< 
Sumner  v.  Sampson,  116. 
Sumner  v. 

Sumner  v.  Waugh,  332. 
Sumner  v.  Williams,  84  I. 
Sumner  p.  Rabb,  116,  l  15. 
Sunderland  v.  Sun  lerland,  500. 
Supervi  tors  v.  Patterson,  272, 
Sussex  1    -.  ( !o  .    -.  Woodruff,  327. 
Sutherland  o.  I 
Sutphcn  r.  Cuabman,  3n7. 
Sutton  v.  Aiken,  469,  494. 
Sutton  i>.  Burrows,  115. 
Sutton  v.  Voir,  1 15,  401,  490,  882. 
Sutton  v.  Mason,  322. 
Sutton  r.  Sutton.  877. 
Sutton  v.  Stone.  858. 
Swaine  ».  Ferine.  66,  120,  147,  873. 
Swan  r.  Hodges,  812. 
Swan  v.  Japple,  829. 
Swartz  r.  Swart/.,  842. 
Swasey  o.  Little, 
Swearinger  v.  Morris,  S73. 
Sweatt  v.  Corcoran,  7  I  >. 

Sweet  r.  Sherman,  370. 

Sweetapple  ■.  Bindon,  105. 
Sweetser  v.  Jone  .1. 


Sweetland  v.  Sweetland,  304,  306,  307, 
310. 

o  Cutts,  615. 

B6L 

Swift  v.  Kraemer, 
Swift  v.  Thompson,  5,  6. 

..•■:.'.ueky,  I  70. 

Swinburne  ••.  Swiubtin  >■,  SOU 

Swinto  I   -'.  41 1,  412. 

Sylve- 
"  •  - 

-     -  [  JlflM 


Tabb  .-.  Baird, 
Tadlocl 

Taft  -     . 

Taft    . 

Tainter  1,506. 

Talbot  ,-.  Brodhill, 

Talbol  71. 

Talbot  p.Whij 

Tallma  -  Bank,  003. 

Tallmadge  .-.  Gil 

Tallin: 

Tallman  v.  Bi  ow,  277. 

Tallin:. 

Tainin  v.  K 

Tancwd  o.  Christy,  216. 

Tanner  r.  1! 
Tanner  p.  Skim 
Tanner  ».  B 
Tane  v.  Campbell, 
Tappan  v.  1 1  " 

Tappan  9.  Davidson.  v77. 
Tappan  ;-.  1 
Tappan  v.  RedAeld,  - 
Tarrant  r.  Ware, 
Tarver  v.  Tarver.  891. 
Tasker  o.  Bartlett,  80S. 
rney,  747. 
.  Crowsoa, 

Tat 

Taylor  r.  Baldwin.  242.  288. 

Tavlor  v.  Benhaii 


TABLE    OF   CA8E8    I  [TED. 


xcv 


Taylor  v.  Boulwnrr,  164. 
Taylor  v.  Boyd,  609,  767. 

Taylor  v.  Broderick,  135. 
Taylor  v.  Bray,  867. 

Taylor  v.  Caldwell,  175. 

Taylor  v.  Denning,  876. 

Taylor  v.  Dickinson,  518 

Taylor  t>.  Fowler,  117. 

Taylor??.  Glaaer, 

Taylor  v.  Hampton,  005. 

Taylor  v.  Henry,  60  I. 

Taylor  v.  Hay-rath,  499. 

Taylor  v.  Horde,  49, 

Taylor  t\  Hotchkin,  338. 

Taylor  v.  Kelly,  875. 

Taylor  v.  King,  801,  811. 

Taylor  v.  Luther,  307. 

Taylor  v.  McCraekin,  117. 

Taylor  v.  Mason,  27:',,  274. 

Taylor  r.  Morton,  786,  807. 

Taylor  v.  Page,  310,  382. 

Taylor  v.  Porter,  318,  751. 

Taylor  v.  Short,  375. 

Taylor  v.  Sutton,  274,  275. 

Taylor  v.  Taylor,  40, 415,  434, 417, 537, 

538. 
Taylor  v.  Thomas,  339. 
Taylor  v.  Waters,  651. 
Teed  v.  Caruthers,  294. 
Telfair  v.  Koe,  663. 
Temple  v.  Mead,  875. 
Templeman  v.  Biddle,  71. 
Ten  Eyck  v.  Craig,  325. 
Tennant  v.  Stoney,  130. 
Terhaw  v.  Ebberson,  799. 
Terrell  v.  Andrew  County,  338. 
Terrett  v.  Taylor,  632,  730,  744. 
Terry  e.  Briggs,  536,  542,  544. 
Terry  v.  Chandler,  726. 
Terry  v.  Diabenstadt,  861. 
Terry  v.  Eureka  College,  358. 
Terry  v.  Ferguson,  199. 
Teschemacher  v.  Thompson,  834. 
Tew  v.  Jones,  216. 
Tewksbury  v.  O'Connell,  812. 
Tewksbury  v.  Magraff,  199. 
Texira  v.  Evans,  789. 
Thacher  v.  Phinney,  77,  802. 


Thacker  v.  Guardenier 
Tharp  v.  Feltz,  355,  325. 
Thatcher  v.  Omans,  463,  782. 
Thatcher©.  Powell,  761. 
Thayer  v.  Baeon,  726. 

r  o.  Campbell,  329,  360, 
Thayer  r.  Cramer,  322. 
Thayer  v.  Mann,  310, 
Thayer  v.  Richards,  812. 
Thayer  v.  Bocietj , 
Thelluson  v.  "Woodford,  632,  646. 
Thistio  v.  Buford,  781. 
Thiebarnl    .  8  bastian,  v7-'i. 
Thomas  v.  Bertram, 
Thomas  v,  Boernor,  746. 
Thomas  v.  Cook,  198. 
Thomas  v.  Polwell,  4 
Thomas  v.  Gammel,  127. 
Thomas  v.  Hatch,  254. 
Thomas  v.  Marsh  field,  593,  694,  697, 

714. 
Thomas  v.  Patten,  841. 
Thomas  v.  Perry,  851. 
Thomas  v.  Pickering,   - 
Thomas  r.  Standiford,  500,  501. 
Thomas  v.  Stickle,  853. 
Thomas  v.  Thomas,  121. 
Thomas  v.  Turner,  788. 
Thomas  v.  Von  Kapff,  327. 
Thomas  v.  Walker,  501. 
Thomas  v.  Wyatt,  740. 
Thompson  v.  Adv.  Gen.,  ^73. 
Thompson  v.  Banks,  306,  842. 
Thompson  v.  Bertram,  3<  2 
Thompson  r.  Bostick,  243. 
Thompson  v.  Boyd,  117,  122. 
Thompson  v.  Chandler,  341,  321,  334. 
Thompson  v.  Cochran,  120,  124. 
Thompson  v.  Colier,  143. 
Thompson  v.  Davenport,  308. 
Thompson  v.  Davitt,  877. 
Thompson  v.  Egbert,  148. 
Thompson  v.  Field,  300. 
Thompson  v.  Gregorys  653. 
Thompson  v.  Hoop,  533,  539. 
Thompson  v.  Kyner,  881. 
Thompson  v.  Kenyon,  329. 
Thompson  v.  Lawley,  562. 


rxcvi 


TABLE    OF    CASES    CITED. 


Thompson  v.  Leach,  396,  422,  424. 
Thompson  v.  Lloyd,  814. 
Thompson  v.  Morrow,  135. 
Thompson  v.  Pioche,  698. 
Thompson  v.  Stacy,  115. 
Thompson  v.  Thompson,  70,  121,  122, 

117,  741,  801. 
Thompson  v.  Wheatley,  501. 
Thomson  v.  Peake,  496,  1  '7. 
Thorn  v.  Thorn,  31«. 
Tliorndike  v.  Burrage,  189. 
Thornton  v.  Boyden,  308. 
Thornton  v.  Boy],  I  I 
Thornton  v.  Irwin,  8 
Thornton  v.  Oailliara, 
Thornton  v.  Knox,  292,  298. 
Thornton  v.  Paj  ne,  17'.'. 
Thornton  v.  I' 
Thoroughg  812. 

Thorp  v.  Kei  kuk  ('.  Co.,  882,  7-1. 
Thorp  v.  Goodall,  676. 
Thorp  r.  Raymond,  715. 
Thorp  v.  Dunlap, 
Thrasher  v.  Pinckard,  188. 
Thrasher  o.  Tya<  k,  1  18. 
Thunder  o.  Belcher,  2    . 
Thurherr.  Townshend,  101,  110. 

Thurman  o.  Cameron,  795,  805. 

Thurshy  v.  Plant,  186. 

Thurston  r.  Dickerson,  1"". 

Thurston  u.  Banco  k, 

Thurston  ».  Prentiss,  3G5. 

Tibbuls  v.  Jacobs,  81 1. 

Tice  v.  Annin,  339,  318. 

Ticknor,  Estate  of,  882. 

Tiernan  v.  Hinman,  809. 

Tiernan  v.  Thurman,  292,  ! 

Tiernan  v.  Tiernan,  159. 

Tifft  v.  llorton,  4,  5,  G,  400,  851. 

Tilford  v.  Torrey,  500.  501. 

Tilghman  o.  Little.  199. 

Tillinghast  v.  Champlin,  253. 

Tillinghast  b.  Coggeshall,    433,  434, 
495,  505. 

Tillotson  v.  Boyd,  332. 

Tillotson  v.  Preston,  652. 

Tilson  r.  Thompson,  144. 

Tilton  r.  Emery,  727. 


Tilton  v.  Hunter,  817. 

Tilton  v.  Nelson,  726. 

Tinkham  v.  Arnold,  599. 

Tinnicum  Fishing  Co.  v.  Carter,   834 

Tippett  r.  Eyres. 

.  Y  v.-., 
Tissen  v.  Tissen. 
Titley  v.  Wolstenbolme,  509. 
Titman  v.  M 

Titus  p.  Wilson,  120,  316. 
Tobias  r.  Ketchum,  60 
. 

.  M  a:::-:- 

'.71. 

: 

Toller  r.  Atwo    I    1    1. 
Toilet  v.  T 

Tomlii  son  e.  Dig       : ,  401. 

nmouth  In>.  Co.,  306. 
Tompkins  I  16. 

Tompk 

.  Williams, 
rvin,  1^1. 

148. 
.Dil   ile,  815, 

y  9.  McLean,  1 17. 
.  r.  Topley, 
Torrance, 
Torrence  r.  Carl>rv.  122, 
Torre         I  "(33. 

Torrey  r.  Bfinor,  115. 
Torrey  p.  T 

Torriano  r.  Young,  77. 
To^tia  v.  Faught, 
Totten  r.  Stuyvesant,  116, 
Touehard  D.  Crow.  7-1. 
Toughre  v.  Nutshell.  512, 
Toulmin  r.  Austin,  801. 
Toulmin  v.  Heidelburg,  sOfi. 
Tousville  !•.  Pierson,  161. 
Tower  p.  Hale.  7 
Town  r.  Hazen. 


TA1JLE   OF    CASKS    CITED. 


XCV11 


Towne  v.  Ammidown,  513. 

Towne  v.  Butterfield,  199,  213. 

Townsend  v.  Jennison,  717. 

Townsend  v.  Smith,  805. 

Townshend,  Matter  of,  763 

Townshend  v.  Brown,  744. 

Townshend  v.  Corning,  805. 

Townshend  v.  Townshend,  881. 

Townshend  v.  Wilson,  513. 

Townshend  v.  Windham,  576. 

Townson  v.  Tickell,  561. 

Tracy  r.  Atherton,  715. 

Tracy  v.  Colby,  501. 

Tracy  r.  Craig,  501. 

Tracy  v.  Kelley,  501. 
Tracy  v.  Tracy,  81. 

Trail-.. rd  r.  Boehm,  542. 

Trafton  v.  Hawes,  776,  801. 
Trammell  v.  Trammell,  600,  651 

Traphagen  o.  Burt.  500. 
Trapnall  v.  Brown,  499,  507. 
Transue  v.  Brown,  877. 

Trask  v.  Patterson,  90. 

Trask  v.  Wheeler,  277. 

Trastere.  Nelson,  851. 

Treadwell  v.  McKeon,  501. 

Treat's  Appeal,  884. 

Treat  v.  Pierce,  322. 

Trench  v.  Harrison,  501. 

Trent  v.  Hanning,  504. 

Trenton  Bank  v.  Woodruf,  92. 

Treon's  Lessee  v.  Emerick,  242. 

Trickeyt?.  Schlader,  611. 

Trimble  v.  Boothby,  246. 

Trimm  v.  Marsh,  318,  322. 

Tripe  v.  Marcy,  339,  322,  326,  358. 

Tripp  v.  Hasceig,  842. 

Trish  v.  Newell,  881. 

Tritt  v.  Colwell,  92. 

Trotter  v.  Hughes,  332. 

Trousdall  v.  Darnell,  218. 

Truck  v.  Lindsey,  305,  306. 

Truebody  v.  Jacobson,  292. 

Truesdale  v.  Ford,  819. 

Trull  v.  Bigelow,  816. 

Trull  v.  Eastman,  728. 

Trull  v.  Fuller,  799. 

Trull  v.  Skinner,  305,  309,  741. 


Trulock  v.  Robey,  325. 

Truman  v.  Lore,  807. 

Tru.-cott  v.  King,  842. 

Trustee  v.  Dickinson,  322,  686. 

Trustees  v.  Dickson,  374. 

Trustees  v.  Louder,  837. 

Trustees  v.  Spencer,  846. 

Trustees  v.  Stewart,  513. 

Trustees,  etc.,  c.  King,  481. 

Tru-tees  of  Uidon  College  v.  Wheeler, 
882. 

Tuck  v.  Fitts,  142. 

Tuck  r.  Hartford  Ins.  Co.,  327. 

Tucker  v.  Burrow,  500. 

Tucker  v.  Clarke,  730. 

Tucker  v.  Moreland,  792. 

Tuck.  rv.  Oxner,  877. 

Tucker  v.  Palmer,  513. 

Tuckley  v.  Thompson,  292. 

Tuite  v.  Miller,  851. 

Tulley  v.  Davis,  710. 
Turn  v.  Russ,  561. 
Turnbull  v.  Rivers,  609. 
Turner  v.  Cameron,  324. 
Turner  v.  Coffin,  725. 
Turner  v.  Cook,  877. 
Turner  v.  Doe,  212. 
Turner  v.  Field,  808. 
Turner  v.  Goodrich,  860. 
Turner  v.  Horner,  295. 
Turner  v.  Johnson,  363. 
Turner  v.  Kerr,  306. 
Turner  v.  Petigrew,  501. 
Turner  v.  Quincy  Ins.  Co.,  327. 
Turner  v.  Reynolds,  799. 
Turner  v.  Scott,  875,  891. 
Turner  v.  Timber,  562. 
Turner  v.  Thompson,  602. 
Turner  v.  Watkins,  368. 
Turney  v.  Chamberlain,  694. 
Turney  v.  Smith,  141,  142. 
Turnipseed  v.  Cunningham,  306. 
Tuthill  v.  Scott,  614. 
Tuttle  v.  Bean,  219. 
Tuttle  v.  Reynolds,  199,  213. 
Tuttle  v.  Wilson,  181. 
Tweddell  v.  Tweddell,  372. 
Twitchell  v.  McMurtie,  329,  332. 


XCV111 


TABLE    OF    CASES    CITED. 


Twisden  v.  Lock,  404. 
Twort  v.  Twort,  242. 
Tyler  v.  Gardner,  879. 
Tyler  v.  Hammond,  598. 
Tyler  v.  Moore,  434. 
Tyler  v.  Tyler,  888. 
Tyler  v.  Wilkinson,  699. 
Tyrrell  v.  Marsh,  661. 

u. 

Ufford  v.  Wilkins,  830. 
Ulpu.  Campbell,  127. 
Underhill  v.  Saratoga  &  Washington 

R.  R„  273,  863. 
Underwood  p.  Campbell,  808. 
Underwood  p.  Sutliflfe,  600. 
Union  Bank  p.  Emerson,  4,  6. 
Union  Mutual  Ins.  Co.  v.  Campbell, 

607. 
Unitarian  Society  v.  Woodbury,  507. 
United  States  v.  Amedy,  461. 
United  States  p.  Appelton,  619. 
United  States  p.  Crosby,  7 11,873. 
United  States  p.  Fitzgerald,  717. 
United  Stat  •    .  II      •,  310. 

United  Slates  p.  Euckal 7'>'>. 

United  States  p.  Linn,  790. 
United  States  v.  Sturgess,  316. 
University   of   Vermont  v.  Josslyn, 

182. 
Upchuroh  p.  Upchurch,  876. 
Upham  p.  Varney,  494,  635. 
Upshaw  o.  Hargrave,  292. 
Upton  v.  Archer,  7S9. 
Upton  v.  Greenlees,  196. 
Upwell  v.  Ilalsey,  546. 
Urann  v.  Coates,  506. 
Urch  v.  Walker,  610. 
Uridras  v.  Morrell,  2lV>. 
Urmey  v.  Wooden,  884. 
Usher  v.  Richardson,  130. 
Utx.,  Estate  of,  B88. 
Uvedall  v.  Uvedall,  418. 


Vail  v.  Jacobs.  864. 
Valentino  v.  Havener,  859. 
Valentino  p.  Piper,  8    I. 


Valle  v.  Clemens,  730. 

Van  Arsdall  v.  Fauntleroy,  106. 

Van  Brunt  v.  Mismer,  310. 

Van  Burc-n  r.  Dash,  885. 

Van  Buren  r.  Olmstead.  334,  325. 

Van  Cortlandt  p.  Kip 

Van  Cott  r.  Heath,  310. 

Van  OoUTt  i.  II 

Van  D 

Van  D<  '.-•        .  Young,  400. 

V  eritt,  70. 

Van  Doren  v.  I 

Van  1 1  an  Duzer,  108. 

V.     I>.   ■  e    .  Van  Duyne,  606. 

Van  D  layre,  117,  318. 

Etta  P.  Eva 
Van  11  nda,  259. 

Van  N.  H        II    att,  618. 

ss  v.  Packard. 
Van  Orden  p.  Van  Orden,  148. 

'ell    .  M  <■■■■ 
\ 

'..  646. 
Van  Rensselaer  p.  Chadwick,  648. 
Van  .  '    ark,  816. 

Van  Rensselaer  v.  Dennison,  811, 

Freeman,  198. 
ip,  192. 
Van  Rensselaer  p.  Hays,  1  •".  l  ■- 
644. 

Van  Rensselaer  r.  Kearney. 
Van  Rensselaer  p.  Penniman,  7, 198. 
Van  Rensselaer  p.  Plainer,  644 
Van  Rensselaer  p.  R  ulcliff,  693. 
Van  Rensselaer  v.  Head.  192, 
Van  Rensselaer  p.  Slingeriand, 
Van   Rensselaer   p.   Smith,      H 

192. 
Van  Santwood  p.  Sanford.  786,  8 
Van  Vechten  p.  Keator, 
Van  Vronker  P.  Eastman,  120,  356. 
Van  Wagner*.  Brown,  821. 
Van  Wagner  p.  Van  Nostrand,  851. 
Van  Wyck  p.  Seward.  802. 
Vance  p.  I  ore,  8-7. 
Vance  v.  Johnson. 
Vance  p.  Vance,  127,  1 17. 

1    -.  Medloek,  827. 


TABLE    OF    CASES    CITED. 


xcix 


Vandenheuval  v.  Storrs,  216. 
Vanderhaise  v.  Hughes,  302,  308,  356. 
Vanderkemp    v.   Sheldon,   339,   321, 

359. 
Vander  Volgen  v.  Yates,  496. 
Vane  v.  Lord  Barnard,  80. 
Vanhorne's  Lessee  v.  Dorrance,  271, 

274. 
Vanmeter  v.  McFaddin,  292. 
Vnnmeter  v.  Vanmeter,  310. 
Vannice  v.  Bergen,  321,  336. 
Vansantr.  Boileau,  878. 
Vansant  v.  Roberts,  882. 
Yansyckle  v.  Richardson,  663. 
Varick  v.  Smith,  751. 
Varner  v.  Bevil,  873. 
Varney  v.  Stevens,  65,  68. 
Varnum  v.  Meserve,  866. 
Vaughn  v.  Stuzaker,  851. 
Vaughn  v.  Tate,  832. 
Vaux  v.  Parke,  615. 
Vedder  v.  Evartson,  538. 
Veghte  v.  Raritan  Co.,  652. 
Venable  v.  Beauchamp,  259. 
Vennura  v.  Babcoek,  310. 
Verdier  v.  Verdier,  877. 
Vernon  v.  Kirk,  876. 
Vernon  v.  Smith,  190,  199,  327. 
Verplank  v.  Sterry,  802. 
Very  v.  Watkins,  362. 
Viall  v.  Carpenter.  609. 
Vickery  v.  Benson,  715,  740. 
Vidal  v.  Girard,  445,  461. 
Videau  v.  Griffin,  805. 
Village  of  Delphi  v.  Youmans,  615. 
Villiers  v.  Villiers,  467,  504. 
Villines  v.  Norfleet,  501. 
Vincent  v.  Bishop,  567. 
Viner  v.  Francis,  402. 
Viner  v.  Vaughn,  75. 
Viser  v.  Rice,  789. 
Vogle  v.  Ripper,  335. 
Vorebeck  v.  Roe,  799. 
Vorhees  v.  McGinnis,  5. 
Voorhies  v.  Burshard,  842. 
Voorhies  v.  Freeman,  4,  5. 
Vorhis  v.  Forsythe,  851. 
Voris  v.  Renshaw,  273. 


Voris  v.  Sloan,  642. 
Vosburg  v.  Teator,  726. 
Vose  v.  Dolan,  789. 
Vose  v.  Handy,  330. 
Vreeland  v.  Ryno,  881. 
Vrooman  v.  Shepherd,  700. 
Vrooman  v.  Turner,  332. 
Vvryan  v.  Arthur,  180,  190,  646. 
Vroom  v.  Ditmas,  3'j4. 

w. 

Waddington  v.  Bristow,  799. 

Wade  v.  Am.  CoL  Soc,  884. 

Wade  v.  Comstock,  861. 

Wade  v.  Greenwood,  292. 

Wade  v.  Baldmier,  337.  335. 

Wader.  Halligan,  186,  187. 

Wade  v.  Howard,  337,  321,  333. 

Wade  v.  Johnson,  5. 

Wade  v.  Lindsey,  795. 

Wale  v.  Paget,  612. 

Wadsworth  v.  Loranger,  307. 

Wadsworth  o.  Wendell,  808. 

Wadsworth    v.    Williams,   337,   336, 
802. 

Wadsworth ville  School  v.  Meetz  200. 

Wafer  v.  Mocato,  279. 

Waffle  v.  N.  Y.  Cent.  R.  R.,  615. 

Wagner  v.  McDonald,  875,  891. 

Wagner  v.  White,  195. 
Wagstaffv.  Lowene,  517. 
Wagstaffv.  Smith,  469,  494. 
Waid  v.  Amory,  564. 
Wainwright  v.  McCullough,  834 
Wait  v.  Belding,  37. 
Wait  v.  Maxwell,  792. 
Walcop  v.  McKinney,  322. 
Walden  v.  Bodley,  213. 
Waldo  v.  Hall,  186. 
Waldo  v.  Rice,  326. 
Wales  v.  Melen,  311,  323. 
Wales  v.  Miller,  322. 
Walker  v.  Baxter,  321. 
Walker  v.  Demente,  330. 
Walker  v.  Ellis,  214. 
Walker  v.  Fitts,  178,  201. 
Walker  v.  Forbush,  214. 
Walker  v.  Hall,  888. 


TAIiLE    OI  f'lTED. 


Walker  v.  Jones,  875. 
Walker  v.  Johnson,  322. 
Walker  v.  King,  337,  322. 
Walker*.  Locke,  507. 
Walker  v.  Paine,  ;H0. 
Walker  r.  Public  Works,  835. 
Walker  v.  Quigg,  563. 
Walker  v.  Richardson,  198. 

•  ■rv.  Schuyler,  135. 
Walker  v.  Sharpe,  218. 
Walker  v.  Snediker, 
Walker  v.  Vincent,  275. 

Walkerw.  Walker,  W  !,  884. 

Walker  v.  Whiting,  498. 
Walker  v.  Williams,  - 

Walker  p.  Wilson,  861. 

Wall  v.  Q-oodenough,  199. 

Wall  v.  Binds,  8,  77,  1-  .  L92. 

Wall  p.  McGuyer,  638. 

Wall  D.Trumbull,  781. 

Walla*  e  p.  B 

Wallace  p.  Blair,  B21 

Wallace  p.  Brown,  7 

Wallace  p.  Duffield,600,  50L 

Wallace  i  I 

Wallace  u 

Wall 

Wallace  v.  Bartnstad,  642, 

Wallace  p.  Lewis,  7 

Wallace  p.  Wilson, 

Wallace  p.  Wainwright,  50ti,  507. 

Waller*.  Tate  318. 

Waller  v.  Von  Phul,  746. 

Waller  p.  Waller,  877. 

Walling  c.  Aiken.  341. 

Walls  v.  Preston,  201. 

Walmsloy  v.  Jewett.  561. 

Walsh  v.  Barton,  862. 

Walsh  p.  Mathews,  276. 

Walsh  p.  Ries,  159. 

Walsh  p.  Xoung,  90. 

Walters  v.  Bredin,  272,  78 

Walter-  p.  Jordan,  128. 

Walthall's  Ex'ors  v.  Rives,  82 

Walton  p.  Crowley,  L82,  305. 

Walton  v.  Hargrove,  292. 

Walton  r.  Waterhouse,  189,  199. 

Walton  v.  Wittington,  325. 


Wampler  v.  Wampler,  877. 
Warbas-  v.  Armstrong,  517. 
.  511. 
2   504. 

oo. 

.-tholmew,  715,  795. 
W     '    .  B  .  !.  I 

L 

. 
Ward  198. 

[ 

Wai 

.  116. 

A 

Waring    .  Warii  g,  616. 
Wark    .  W 

I  ppeal.886. 

Warner  n.  Rennet 
Warner  p.  Hlakeman. 
-.  310. 

!•   !•.    Bull, 

Warm  r  p.  Hitchi   a,  189 
Warner  r.  Howell.  670. 

j  nch,  788,  808. 
Warner  p.  SouthwortI  . 

Warner  p.  Van  AJstyne,  124,  202. 
Warn*  • 

Warrall  p.  Muni).  81  I. 
W  rriner  o.  R  gers,  506. 
nhy  !•.  Moran.  644 
Warwick  p.  Bruce.  7 
Washabaugh  p.  Kntricken. 
Waahband  p.  Waahband,  802. 
Washburn  P.  Oilman.  61  1. 
Washburn  P.  Goodwtl 
Washburn  p.  Merrills, 
Washburn  P.  Sproat,  77. 


TABLE   OF   CASES   CITED. 


CI 


Wa&s  '.  Bucknam,  IOC. 

Waterman  v.  Curtis,  855. 

Waterman  v.  Hawkins,  888. 

Waterman  v.  Johnson,  836. 

Waterman  v.  Mattison,  351,  322. 

Waterman  v.  Smith,  746. 

Waters  v.  Breden,  273. 

Waters  v.  Gooch,  142,  143. 

Waters  v.  Groom, 

Waters  v.  Randall,  806,  308,  309,  310. 

Waters  v.  Stewart,  318. 

Waters  v.  Tazewell,  469. 

Waters  v.  Young,  218. 

Waters'  Appeal,  724. 

Watkins  v.  Dean,  875. 

Watkins  v.  Edwards,  817. 

Watkins  v.  Gregory,  305. 

Watkins  v.  Holman,  89,  756. 

Watkins  v.  Hopkins,  663. 

Watkins  v.  Peck,  599,  617. 

Watrous  v.  Blair,  819. 

Watson  v.  Dickens,  322. 

Watson  v.  Foxon,  404. 

Watson  v.  Hayes,  499. 

Watson  v.  Hunter,  81. 

Watson  v.  Mayrant,  498. 

Watson  v.  Mercer,  755. 

Watson  v.  O'Hern,  178. 

Watson  v.  Peters,  833. 

Watson  v.  Pipes,  877. 

Watson  v.  Spence,  322. 

Watson  v.  Watson,  108,  139. 

Watt  v  Alford,  359. 

Watt  v.  Watt,  359. 

Watts  v.  Bald,  514.     . 

Watts  v.  Coffin,  324. 

Way  v.  Arnold,  730. 

Way  v.  Reed,  186,  191. 

Wayman  v.  Jones,  613. 

Wead  v.  Larkin,  860. 

Weale  v.  Lower,  397. 

Weare  v.  Linnell,  500. 

Weatherbee  v.  Ellison,  842. 

Weatherby  v.  Smith,  355. 

Weathersley  v.  Weathersley,  305. 

Weathersley  v.  Belcher,  324. 

Weaver  v.  Gregg,  116. 

Web  v.  Paternoster,  651. 


Webb  v.  Haleston,  332,  322,  368. 

Webb  r.  Maxan,  359. 

.  Portland  <'•>.,  614. 

Webb  ".  Richardson,  714. 

Webb  v.  Robinsoi 

Webb  w.  Shcftesbury,  561. 

\Vebb  v.  Thorn ]■ 

o.  Webb,  801. 

Webber  v.  Easton  B.  K.,  842. 

Weber  o.  Harbor  Commissioners,  834. 
i.  Weber,  494. 

Webster  v.  Boddington,  "'It. 

Webster  r.  Caleft  242. 

Webster  v.  Calden,  319.  ' 

Webster  o.  ( !hii  aLr",  760. 

Webster  o.  Conley,  187. 

Webster  u.  Cooper,  277,  4.J4,  494. 

Webster  v.  King,  501. 

Webster  r.  Potter,  2,  842. 

Webster  v.  Stevens,  619. 

Webster  v.  Vandeventer,   238,    359, 
360,  509. 

Webster  v.  Webster,  69,  73,  76,  77. 

Wedge  v.  Moore,  117,  122. 

AVeed  Sewing  Machine  Co.  v.  Emer- 
son, 332. 

Weed  v.  Beebe,  359. 

Weed  v.  Coville,  310. 

Weed  v.  Crocker,  179. 

Weeker  v.  Eaton,  329. 

Weeker  v.  Thomas,  325. 

Wegg  v.  Villiers,  486. 

Weidner  v.  Foster,  324. 

Weir  v.  Fitzgerald,  877. 

Weir  v.Tate,  116,  129,  144. 

Weisbrod  v.  Chicago  and  N.  W.  R. 
R.,  806. 

Weishaupt  v.  Brehman,  884. 

Weisinger  v.  Murphy,  254. 

Welborn  w.  Anderson,  696. 

Welch  v.  Adams,  199,  324. 

Welch  v.  Allen,  504. 

Welch  v.  Anderson,  148. 

Welch  v.  Chandler,  103. 

Welch  v.  Foster,  776. 

Welch  v.  Phillips,  329,  839. 

Welch  v.  Priest,  329. 

Weld  v.  Bradbury,  533. 


en 


TABLE    OF    CASES    CITED. 


Weld  v.  Traip,  853. 

Welland  Canal  v.  Hathaway,  724. 

Welborn  v.  Williams,  295. 

Welles  v.  Castle,  194,  195,  494. 

Wells  v.  Beall,  138. 

Wells  v.  Castles,  515. 

Wells  v.  Chapman,  259. 

Wells  v.  Heath,  504. 

Wells  v.  Jackson  Iron  Co.,  831. 

Wells  v.  Lewis,  511. 

Wells  v.  Morrow,  296. 

Wells  v.  Preston,  'J01. 

Wells  v.  Prince,  695. 

Wells  v.  Thompson,  106. 

Wells  v.  Wells,  889. 

Welsh  r.  Beers,  875. 

Welsh  v.  Bucking,  126. 

Welsh  v.  Sackett,  B12. 

Welsh  v.  Usher,  290. 

Welton  v.  Divine,  500. 

Wendell  r.  Crandall,  403. 

Wendell  p.  North.  B60. 

Wesson  r.  Stevens,  814. 

West  v.  Berney,  661. 

West?-.  Hendrix,  805,  806. 

West  p.  Hughes,  746. 

West  v.  Stewart,  2,  702. 

West  v.  Skip,  498. 

West  Point  Iron  Co.  v.  Kevmett. 

West  River  Bridge  Co.  p.  Dix,  686. 

WestRoxbury  p.  Stoddard,  836. 

Westcott  v.  Delano,  2,  10,  662. 

Western  K.  R,  p.  Babcock,  813. 

Westfall  v.  Preston,  7(30. 

Weston  v.  Weston,  6 

Weston  P.  Woodcock,  7. 

Wetherell,  Kx  parte,  289. 
Witz  v.  Beard,  161. 
Weyand  p.  Tipton,  767. 
Whalen  p.  Cad  man,  160. 
Wl  aley  p.  Whaley,  200. 
Whalin  p.  White,  199,  361. 
Whaling  Co.  r.  Borden,  253. 
Whaley  0.  Thompson,  B42, 
Wharf  v.  Howell,  811. 
Wharton  v.  Wharton,  46. 
Whatley?'.  Small.  SI 7. 
Whatman  ?•.  Gibson,  003. 


Wheatley  v.  Baugh,  615. 
Wheatley  o.  Calhoun,  116,  124. 
Wheaton  v.  East,  793,  850. 
Wheeler  r.  Durant,  875. 
Wheeler  v.  Early,  191. 
Wheeler  r.  Hatch,  851. 
Wheeler  v.  Montefiore,  194. 
Wheeler  v.  Smith,  1,  884. 

Wheeler  v.  Spinola,  B84, 

-"     -".2S1. 
Bier,  888. 
Wheelock  r.  Warn  hauer,  199. 
Wheelock  ■■  Freeman, 
Whelp 

■  I  me  -.  B  11  .  ; 
Whilden  v.  Whi.  len,  148, 
Whilton  r.  Whilton.  888,  2<>0. 
Whipple  r.  Foot,  in,  767,  799. 
Whitaker  t>.  Br 

Whitaker  r.  Sumner,  I 

Whitaker  r.  Will 

Whitbeck 

Whitbread,  Bx  | 

Whitoomb  P.  Cardcil,  606. 

Whitoomb  p.  Simpson,  333. 

White  p.  Adbertaon,  .".13. 

White  p.  B 

White  p.  B         ■ .  728 

White  p.  BroWl  . 

White  p.  Burnley, 

White  p.  Carpenter,  500. 

White  p.  Cutler, 

White  p.  Denman,  339. 

White  p.  Drew,  501. 

White  r.  Dougl  • 

White  p.  Downs,  . 

White  p.  Blwell, 

White  p.  Fitzgerald.  606. 

White  v.  Flannigan,  E 

White  c.  Foster, 

White  P.  Fulier.  796. 

White  p.  Godfrey . 

White  P.  Graves.  116,  810. 

Whiter.  Hale.  BG 

White  p.  Hampton.  881,  508,  6ia 

W      s    .  U    ka, 

Whiter.  Boward, 

White  v.  Hulme,  94. 


TABLE    OF    CASES    CITED. 


ciii 


White  v.  Hunt,  183. 

White  v.  Livingston,  178,  216. 

White  v.  Molyneaux,  194. 

White  v.  Moses,  756. 

White  v.  Patten,  727. 

White  v.  Polleys,  376. 

White  v.  Rittenmeyer,  318,  319,  329, 

331. 
White  v.  Sayre,  238,  242. 
White  v.  Story,  135. 
White  v.  Sutherland,  332. 
White  v.  Watts,  359. 
White  v.  Weeks,  801. 
White  v.  White,  148. 
White  v.  Whitney,  318,  331. 
White  v.  Williams,  295. 
White  v.  Woodbury,  39. 
Whitehead  v.  Clifford,  198. 
Whitehead  v.  Hellen,  365. 
Whitehead  v.  Middleton,  117. 
Whitehead  v.  Wooten,  324. 
White  River  Turnpike  Co.  v.  Vt.  Cent 

R.  R,  636. 
White  Water  Canal  v.  Comegys,  81. 
Whiting  v.  Beebe,  336. 
Whiting  v.  Dewey,  829. 
Whiting  v.  Gould,  500. 
Whiting  v.  Stevens,  794. 
Whiting  v.  Whiting,  700. 
Whitmarsh  v.  Cutting,  71. 
Whitmarsh  v.  Walker,  6,  70,  653,  799. 
Whitmore  v.  Learned,  510. 
Whitney  v.  Allaire,  174,  175,  179. 
Whitney  v.  Allen,  361. 
Whitney  v.  Batchelder,  307. 
Whitney  v.  Buckman,  311,  312. 
Whitney  v.  Dewey,  7,  841. 
Whitney  v.  French,  301,  303. 
Whitney  ».  Marshall,  760. 
Whitney  v.  McKinney,  332,  360. 
Whitney  v.  Meyers,  198. 
Whitney  v.  Olney,  2,  842. 
Whittier  v.  Cocher's  M'g  Co.,  605. 
Whittierw.  Dow,  361. 
Whittington  v.  Wright,  693,  698. 
Whittlesey  v.  Fuller,  251. 
Whitwell  v.  Warner,  501. 
Whitworth  v.  Gangain,  290. 


Wickersham  v.  Orr,  653. 
Wickluun  v.  Hawker,  661. 
Wickman  v.  Robinson,  296. 
Wig«,'in  v.  Hey  ward,  318. 
Wiggins*  Holley,  694,699. 
WiUtr*  Appeal,  877. 
Wilbraham  v.  Snow,  242. 
Wilbur  v.  Almv,  51*. 
Wilburn  v.  Larkin,  806. 
Wilcox  d.  Jackson,  744. 
Wilcox  v.  Wheeler,  37. 
Wilcoxon  v.  McGee,  842. 
Wild  v.  Traip,  175. 
Wild  v.  Deig,  753. 
Wild's  Lessee  v.  Serpell,  199,  200. 
Wilde  v.  Armsby,  790. 
Wilder  v.  Houghton,  324,  358. 
Wilder  v.  Ireland,  851. 
Wilder  v.  Thayer,  888. 
Wilder  v.  Ewing,  334. 
Wiley  v.  Moor,  789. 
Wiley  v.  Pierson,  360. 
Wilhelm  v.  Fimple,  861. 
Wilhelmi  r.  Leonard,  321. 
Wilkes  v.  Back,  805. 
Wilkes  v.  Lion,  396,  398,  538. 
Wilkins  v.  French,  318,  319,  320,  329. 
Wilkins  v.  May,  816. 
Wilkins  v.  Wells,  809. 
Wilkins  v.  Wilkins,  359. 
Wilkinson  v.  Flowers,  326. 
Wilkinson  v.  Getty,  805. 
Wilkinson  v.  Leland,  745,  751. 
Wilkinson  c.  Malin,  513. 
Wilkinson  v.  Pargy,  510. 
Wilkinson  v.  Parish,  116. 
Wilkinson  v.  Scott,  443,  801. 
Willard  v.  Eastham,  794. 
Willard,  Ex  parte,  334. 
Willard  v.  Harvey,  333. 
Willard  v.  Henry,  277. 
Willard  v.  Reas,  292. 
Willet  v.  Beatty,  120. 
Willet  v.  Sandford,  463. 
Willett  v.  Winnell,  299,  309. 
Willett  v.  Burgen,  308. 
Williams  v.  Angell,  276,  279,  423,  433 
424. 


CIV 


TABLE   OF   CASES    CITED. 


Williams  v.  Baker,  731,  795,  810. 
Williams  v.  Beeman,  861. 
Williams  v.  Bolten,  81,  400. 
Williams  v.  Bosanquet,  182. 
Williams  v.  Burrell,  190. 
Williams  v.  Burnett,  876. 
Williams  v.  Caston,  65. 
Williams  v.  Cowden,  275. 
Williams  v.  Crutcher,  789. 
Willi 

Williams  v.  Dakin,  278. 
Williams?;.  Davis,  802; 
Williams  v.  Deriar,  21  I.  'J17. 
Williams  v.  Dwi 
Williams  v.  Garrison,  199. 
William^  v.  Hi.'    n,  810,  856,  360. 
Williams  r.  K  194 

Williams  v.  H . >1  li iilcsw< >rtli,  520. 
Williams  v.  Ins.  Co..  I 
Williams  p.  .lames,  608. 
Williams  v.  ilo\  ascy,  330. 
Williams  r.  Moreland,  614 

Williams  r.  Neff, 

Willia   :s  v.  Nelson,  I 
Williams  r.Nolen,  201 
Williams  r.  Owen,  .".00. 

Williams  v.  Pearson,  884. 
Williams  v.  Peyton, 
Williams  v.  Roberts,  292,  294 

Williams  v.  Robsin,  TJ7. 
Williams  v.  Robinson,  824. 
Williams  r.  Sorrell, 
Williams  v.  Saunders,  873. 
Williams  v.  Starr,  :V-)o,  808. 
Williams  v.  Stratton,  290. 
Williams  r.  Sullivan,  813. 
Williams  t'.  Bweetland,  163. 
Williams  r.  Thurlow,  333. 
Williams  v.  Townsend, 
Williams  r.  Turner.  501.  542. 
Williams  v.  Wetberbee.  856. 
Williams  v.  Williams,  500. 
Williams  v.  Woods.  120,  292. 
Williams  v.  Worthington,  506. 
Williams  v.  Young,  296. 
Williams'  Appeal,  644 
Williamson  r.  Buckham,   '• 
Williamson  v.  Carlton,  779. 


Williamson  r.  Champlin,  362. 
Williamson  v.  Daniels,  532. 
Williamson  v.  Field,  359,  397,  401. 
Williamson  v.  New  Albany  R.  R..  324. 
Williamson  p.  Wilkins,  ">14. 
Williamson  r.  Williamson,  433. 
Williamston,  etc.,  R  R.  v.  Battle,  653. 
Willington  o.  Gale,  818. 
Willink  r.  Morris  Canal,  312. 
Willion  v.  Berkley.  308. 
Willis  r.  Farley. 
Willis  v.  II 

Willis  v.  Jenkins,  883. 
■ 

■■.  WNHs, 

-.  199,  200,254. 
Willol    .  5 
Willougbby  '•.  Ilorridge,  636. 

■ 

:  i 

Wilsi  Mord,  615, 

Wii- 

. 
Wilson  v.  1 ' 

I     . 

77. 
Wilson  r.  Fleming,  251. 

Wilson      I 

Wilson  r.  Grabam,  294 

■  u  v.  Hayward,  o30,  360. 
Wilson  r.  7)1. 

Wilson  r.  Hooper,  822. 
Wilson  o.  Hunter.  842. 
Wilson  v.  King, 
Wilson  o.  Lyon.  292,  . 
Wilson  d.  (  an,  131. 

Wilson  <-.  Maltb} .  861. 
Wilson  ?•.  Martin,  17". 
Wilson  v.  Nance, 
Wilson  r.  Patrick,  806. 
Wilson  r.  Russell.  842,  310. 
Wilson  r.  Shoenberger,  804 
Wilson  v.  Smith.  198,  199. 


TABLE   OP   CA8E8    CITED. 


CV 


Wilson  0.  Towle,  508. 
Wilson  v.  Traer,  810. 
Wilson  v.  Troup,  329,  330,  363,  660, 

561,  566,  806. 
Wilson  v.  Weathersby,  199. 
Wilson  v.  Wilson,  312,  355,  538,  642, 

663. 
Wiltt>.  Franklin,  413. 
Wiltshire©.  Sidford,  620. 
Wimberly  v.  Collier,  860. 

a  v.  Fonda, 
Winans  v.  Peebles,  801. 
Winchelsea  v.  Wentworth,  484. 
Winder  v.  Little,  143. 
Windham  v.  Portland,  115. 
Winfield  v.  Henning,  603. 
Wingt>.  Cooper,  298,  805,  308,  363. 
Winkfield  v.  Brinkman,  501. 
Winn  v.  Cabot,  829. 
Winn  o.  Littleton,  320. 
Wiuship  r.  Pitts,  77. 
Winslow  v.  Chiffelle,  253. 
Winslow  r.  Clark,  852,  359. 
Winslow  o.  Kimball,  878. 
Winslow  v.  King,  837. 
Winslow  r.  Winslow,  714. 
Winstead  Savings  Bank  v.  Spencer, 

809. 
Winter  v.  Anson,  294. 
Winter  v.  Brockwell,  605,  653. 
Winter  v.  Peterson,  837. 
Winterbottom  v.  Ingham,  216. 
Winona  R.  K.  v.  St.  Paul  R.  E.,  501. 
Wisner  v.  Farnham,  359. 
Wissler  v.  Henshey,  609. 
Wiswall  v.  Koss,  809. 
Wiswell  v.  Baxter,  362. 
Witham  v.  Perkins,  108. 
Witherby  v  Ellison,  2. 
Withers  v.  Baird,  810. 
Withers  v.  Larrabee,  214. 
"Withers  v.  Withers,  500. 
Withers  v.  Yeadon,  498. 
Withington  v.  Warren,  811. 
Whity  v.  Mumford,  810. 
Witman  v.  Lex,  884. 
Witter  v.  Harvey,  837. 
Wivel's  Case,  730. 


Wofford  v.  McKinna,  242,  696,  760. 
Wolcott  v.  Winchester,  330. 
Wolcott*.  Sullivan,  82 
Wolcott  V.  Ran. 

Wolcott  '•.  Johnson,  199. 
Wolfe  v.  Frost,  699,  651. 
Wolfe  p  -rand,  538. 

i,  182. 
W'dvcrton  v.  Collins,  813. 
Womack  v.  Womack,  659. 
Wood  v.  Appal,  338. 
Wood  e.  Augustine,  -'JlO. 
Wood  y.  Beach,  Mil. 
Wood  '.  Burnham,  495. 
W \  v.  Chain! 

W 1  o.  Chapin,  810. 

ine,  810. 
Wood  v.  C>x,  499,  507. 

:  o.  Felton,  357. 
Wood  v.  Ferguson,  746. 
.  Qo       '''ge,  805. 

i  o.  Griffin,  78,  380.  400,  404,  544. 
Wood  r.  Bildebrand,  790. 

o.  Hubbell,  174,  175. 
Wood  v.  Kellogg.  836. 
Wood  v.  Leadbitler,  652. 
Woodt>.  Lord,  163. 
Wood  v.  Mann,  758. 
Wood*,  iloorhouse,  359: 
Wood  t\  Oakley,  359. 
Wood  v.  Sullens,  292. 
Wood  v.  Trask,  299,  330,  322. 
Wood  v.  Walbridge,  198. 
Wood  r.  Wood,  535. 
Woodbury  v.  Fisher,  812. 
Woodbury  v.  Luddy,  163. 
Woodbury  v.  Parshley,  653. 
Woodbury  v.  Short,  686. 
Woodbury  v.  Woodbury,  216. 
Woodcock  v.  Bennet,  858. 
Woodman  v.  Good,  513. 
Woodman  v.  Pease,  5. 
Woodman  v.  Smith,  842. 
Woodron  v.  Michael,  218. 
Woodruff  v.  Bobb,  368. 
Woods  v.  Banks,  696. 
Woods  v.  Freeman,  761. 
Woods  v.  Hilderbrand,  318,  326. 


CV1 


TABLE    OF    CASES    CITED. 


Woods  v.  North,  730. 
"Woods  v.  Wallace,  1,  307. 
Woodward  v.  Brown,  213. 
Woodward  v.  Gates,  74,  81. 
Woodward  v.  Seaves,  794. 
Woodward  v.  Seeley,  653, 
Woodward  v.  Wood,  352,  360. 
Woodward  v.  Woodward,  293. 
Woodworth  v.  Guzman,  339,  303. 
Woodworth  v.  Paige,  127. 
Wooldridge  v.  Wilkins,  116,  124.  185. 
Woolery  p.  Woolerv,  889. 
Wooliscroft  v.  Norton,  862. 
Woolston  v.  Woolston,  571. 
Wooster  v.  Hunt's  Lyman  Iron  Co., 

115. 
Worcester  p.  Eaton,  796. 
Worcester  v.  Georgia,  682,  744. 
Worcester  v.  Worcester,  402,  411,  412. 
Workman  v.  Mifflin,  195. 
Worman  v.  Teagnrden,  883. 
Worrill  o.  Wright,  542. 
Worthington  v.  llewes,  862. 
Worthington  t>.  llvlver,  827. 
Worthington  v.  Lee,  359,  360. 
Worthington  v.  Young,  702. 
Worth  v.  McAdem,  513. 
Worthy  v.  Johnson,  !■>''>. 

Wragg  v.  Comptroller-General,  292. 
Wray  v.  Steele,  600. 

Wright  v.  Barlow,  567. 

Wright  v.  Barrett,  875. 

Wright  v.  Bates,  307,  308,  310. 

Wright  v.  Brandis,  802. 

Wright  v.  Burrows,  277. 

Wright  v.  Bundy,  359. 

Wright  v.  Cartwright.  435,  486. 

Wright  v.  Dame,  292. 

Wright  v.  DeGraff,  130. 

Wright  v.  Douglass,  606,  507. 

Wright  v.  Dunham,  760. 

Wright  v.  Eaves,  326,  330. 

Wright,  Ex  parte,  289. 

Wright  p.  Freeman,  613. 

Wright  t».  Henderson,  322. 

Wright  v.  Herron,  104. 

Wright  p.  Hicks,  668. 

Wright  v,  Uolhrook,  374. 


Wright  v.  Holford,  404. 
Wright  p.  Iloward,  599. 
Wright  o.  Jennings,  66,  146. 
Wright  v.  Keithler,  694. 
Wright  v.  Lewis,  877. 
Wright  v.  Langley,  359. 
Wriyht  p.  Latlin,  196. 
Wright  v.  Parker,  330. 
Wright  v.  Roberts.  216. 

Wright  v.  Rob  e  8. 
Wright  p.  Saddler,  245. 
Wright  p.  Shaw,  '  \ 
Wright  v.  Shelby,  816. 

Wright  P.  Sperry. 
Wright  v.  Stephens,  413. 

Wright  f.  Swan,  746. 

Wright  r.  Tallmadge.  560,  566,  668. 

Wright  v.  V. 

Wright  i>.  Williams,  616. 

Wr       ti  7.530,730,887. 

Wright  v.  Harrison,  618. 

Wright  !•.  Stewart,  339,  305. 

Wyble  r.  KcPheten,  606. 

Wylie  f.  M.Mhkin,  359. 

Wyman  p.  Babcock,  326. 

Wyman  v.  Brown,  310,  468,  483,  695, 
777. 

Wyman  a,  Symmee,  B78 

Wyndham  p.  Way,  70L 

Wynkoop  d.  Cowing,  307,  308,  310. 

Wynn  v.  Harmaii. 

Wythe  u.  Thurlston,  568. 

Wyly  p.  Collins,  469. 

X. 

Xenos  v.  Wickham,  812. 

Y. 

Yale  r.  Dederer,  4,  7 

Yancy  d.  Smith,  148. 

Yarborough  r.  Newell.  808,  326. 

Yarborough  p.  Wood.  292. 

Yarnal's  Appeal, 

Yarnold  p.  Ifoorehouse,  183. 

Yaryan  p.  Shriner,  292, 

Yater  v.  Mullen,  '2. 

Yates  r.  Aston,  310. 

fates  ■•  Crompton,  B 


TABLE    OF    CASES    CITED. 


CV1] 


Yates  v.  Milwaukee,  831. 

Yeates  v.  Gill,  885. 

Yeaton  v.  Roberts,  396,  401,  402,  633, 

539. 
Yelland  v.  Ficlis,  561. 
Yerby  v.  Yerby,  888. 
York  v.  Jones,  192,  238. 
York  v.  Stone,  260. 
Youle  v.  Richards,  308. 
Young  v.  Adams,  240. 
Young  v.  De  Brubl,  241. 
Young  v.  Hughes,  501. 
Young  v.  Miller,  329,  330,  332. 
Young  v.  Ringo,  801. 
Young  v.  Robinson.  885. 
Young  v.  Smith,  227. 
Young  v.  Spencer,  77. 
Young  v.  Tarbell,  117,  124,  137,  139. 
Young  v.  Thompson,  761. 


Young  v.  Williams,  334,  370. 

Young  v.  Wood,  294. 

Young  v.  Young,  341.  506,  509„ 

Youngblood  v.  Vastine,  817. 

Younge  v.  Guilbeau,  812. 

Younge  v.  Moore,  812. 

Youngman  v.  Elmira,  etc.,  R  R.,  368. 


Zebacku.  Smith,  511,  663,  566. 
Zeller  v.  Eckhart,  326. 
Zeller's  Lessee  v.  Eckhart,  20G,  700. 
Zentmayer  v.  Mittower,  292. 
Zeisweiss  v.  James,  882. 
Zimmerman  v.  Anders,  882. 
Zinc  Co.  v.  Franklinite  Co.,  10. 
Zouch  v.  Parsons,  792. 
Zaver  v.  Lyons,  307,  606. 


THE    LAW 


OF 


REAL    PROPERTY. 


PART  I. 


CHAPTER    I. 

REAL   PROPERTY. 

Section  1.  What  is  real  property. 

2.  What  is  Land. 

3.  Fixtures. 

4.  Between  what  parties  the  question  may  arise. 
6.  Constructive  annexation. 

6.  Question  of  fixtures  between  landlord  and  tenant. 

7.  Time  of  removal. 

8.  Emblements. 

9.  Trees. 

10.  Double  ownership  in  land 

11.  Lands,  tenements,  and  hereditaments. 

§  1.  What  is  real  property.  — In  the  English  common 
law,  property  is  divided  into  two  classes,  real  and  personal. 
Real  property  is  such  as  has  the  characteristic  of  immobility 
or  permanency  of  location,  as  lands,  and  rights  issuing  out 
of  land.  Personal  property  is  every  species  of  property 
which  does  not  have  the  above  mentioned  characteristics. 
The  former  class  constitutes  the  subject  of  these  pages. 

1 


6   2  REAL    PROPERTY.  [PART    I. 

§  2.  What  is  land.  — All  real  property  or  things  real,  are 
said  to  be  comprehended  under  the  terms,  lands,  tenements, 
and  hereditaments.  Land  is  the  soil  of  the  earth,  and 
includes  everything  erected  upon  its  surface,  or  which  is 
buried  beneath  it.  It  extends  in  theory  indefinitely  upward, 
usque  ad  ccelum,  and  downward,  usque  ad  orcum.  Under 
the  term  land, therefore,  art'  included  the  buildings,  mad' 
under  the  doctrine  of  accession,  and  the  trees  and  other 
things  growing  upon  the  land,  under  the  doctrine  of  acqui- 
sition.by  production,  as  well  as  the  minerals  which  may  be 
embedded  in  the  earth.1  If  water  run-  over  the  land,  the 
ownership  of  the  land  gives  a  right  to  the  use  of  the  water, 
but  does  not  create  therein  a  permanent  right  of  property. 
The  property  consists  in  the  use.1  A  grant  of  lands,  there- 
fore, without  any  qualification,  conveys  nol  only  the  soil  but 
everything  else  which  is  attached  t<>  it,  or  which  consti- 
tutes a  part  of  it,  the  buildings,  mines,  trees,  growing 
crops,  etc.  Even  trees  which  have  been  out,  and  are 
lying  upon  the  land,  have  been  said  to  pass  with  the 
land.3  <  )n  the  other  hand,  it  has  been  held  that  a  grant  of 
a  mill  included  the  contiguous   land   which  had  been  used 

1  2  Bla.  Com.  17-19;  Co.  Lit.  4g;  1  Washb.  on  Real  Prop.  3,  4;  Williams 
on  Real  Prop.  14. 

2  See  post,  sect.  614.  But  whether  ice,  formed  upon  a  stream  or  pond,  belongs 
to  the  owner  of  the  soil,  is  a  doubtful  question.  If  it  is  an  artificial  stream, 
it  seems  settled  that  the  owner  of  the  bed  has  a  right  of  property  in  the  ice- 
Mill  River  Co.  v.  Smith,  34  Conn.  162;  Paine  p.  Wood*.  108  Mass.  173.  And 
the  same  position  has  been  sustained  in  Indiana  in  respect  to  a  natural  stream. 
State  v.  Pottmyer,  33  Ind.  402.  In  Massachusetts,  ice  formed  on  a  natural 
stream  seems  to  be  common  property  to  all  who  have  the  right  to  go  upon 
the  stream.  Paine  v.  Wood,  supy-a;  Inhab.  of  W.  Roxbury  t\  Stoddard,  7  Al- 
len, 158. 

1  Brackett  v.  Goddard,  54  Me.  313;  [sham  v.  Morgan,  0  Conn.  374;  Hilton 
i>.  Gilman,  17  Me.  203;  Baker  t>.  Jordan,  3  Ohio,  438;  Backontoss  v.  Stabler, 
33  Pa.  St.  251;  Foote  v.  Colwin,  3  Johns.  222:  Austin  i\  Sawyer,  9  Cow.  39: 
(Map  v.  Draper,  4  Mass.  266;  Canfield  p.  Ford.  28  Barb.  886;  Gloningi 
Franklin  Coal  Co.,  55  Pa.  St.  9;  ftlcllvaine  r.  Harris,  20  Mo.  4">7;  Chapman 
v.Long,  10  Ind.  466;  Todd  p.  Stokes,  10  Pa.  St  166;  Cockrill  p.  Downey, 4 
Ivan.  426;  Cook  p.  Whiting,  16  111.  481;  Gibbons  v.  Dillingham,  10  Ark.  9; 
WeBCOttv.  Delano,  20  Wis.  514;  Conklin  p.  Parsons,  1  Chand.  240. 
2 


CH     I.]  REAL    PROPERTY.  §    2 

with  the  mill,  and  which  was  necessary  to  such  use  ;  and 
the  grant  of  a  house  passed  the  land  upon  which  it  is  built.1 
Manure  made  upon  a  farm  is  generally  considered  in  this 
country  to  be  a  part  of  the  realty  and  to  pass  with  the  grant 
of  the  land.2  So,  also,  has  the  rolling  stock  of  a  railroad 
been  considered  a  part  of  the  realty,  and  to  pass  with  a  con- 
veyance of  the  road  without  any  special  description  of  the 
same.3  The  general  rule  of  law  is  that  a  permanent  annex- 
ation to  the  soil  of  a  thing,  in  itself  personal,  makes  it  a 
part  of  the  realty.  And  the  rule  applies,  in  some  cases, 
even  where  the  thing  annexed  is  the  personal  property  of 
another.  Thus,  if  a  stranger  erects  a  building  upon  the 
land  of  another,  having  no  estate  therein,  the  building 
becomes  the  property  of  the  owner  of  the  soil.  And  this 
happens,  notwithstanding  the  stranger  acts  under  a  mistaken 
claim  of  title.4  But  if  such  erection  is  in  pursuance  of  a 
license  granted  by  the  owner  of  the  soil,  then  the  annexa- 
tion will  not  make  the  building  or  other  structure  a  part  of 
the  realty.  A  conveyance  of  the  land  will  not  transfer 
the  structure  with  it,  but  will  operate  as  a  revocation  of  the 
license,   and  compel  the  owner,  within  a   reasonable   time 


1  Gear  v.  Burnham,  37  Conn.  229;  Esty  v.  Currier,  98  Mass.  501 ;  Wilson  v. 
Hunter,  14  Wis.  683 ;  Allen  v.  Scott,  21  Pick.  225 ;  Webster  v.  Potter,  105 
Mass.  414 ;  Mixer  v.  Reed,  25  Vt.  81 ;  Whitney  v.  Olney,  3  Mason,  282 ;  Davis 
v.  Handy,  37  N.  H.  65. 

*  Goodrich  ».  Jones,  2  Hill,  142 ;  Parsons  v.  Camp,  11  Conn.  525 ;  Perry  v. 
Carr,  44  N.  H.  122 ;  Fay  v.  Muzzy,  13  Gray.  53 ;  Middlebrook  v.  Corum,  15 
Wend.  169 ;  Witherby  v.  Ellison,  19  Vt.  379 ;  Plumer  v.  Plumer,  30  N.  H. 
558;  Daniels  v.  Pond,  31  Pick.  367. 

3  Minnesota  v.  St.  Paul  R.  R,  2  Wall.  644 ;  Farmers'  Loan,  etc.,  Co.  v.  Hend- 
rickson,  25  Barb.  493;  Palmer  v.  Forbes,  23  111.  300;  State  v.  Northern  R. 
R.  Co.,  18  Md.  193.  But  the  better  opinion  is  that  the  rolling  stock  of  a  rail- 
road is  personalty.  Randall  v.  El  well,  52  N.  Y.  '52;  s.  c.  11  Am.  Rep. 
747;  Hoyle  v.  Plattsburg,  etc.,  R.  R.,  54  N.  Y.  314;   s.  c.  13  Am.  R.  Rep.  595. 

4  Osgood  v.  Howard,  6  Greenl.  452;  Aldrich  v.  Parsons,  6  N.  Y.  555;  Dame 
v.  Dame,  38  N.  H.  429 ;  Ogden  v.  Stock,  34  111.  522 ;  Rogers  v.  Woodbury, 
15  Pick.  15f»;  Mutt  v.  Palmer,  1  Comst.  571;  West  v.  Stewart,  7  Pa.  St.  122; 
Webster  v.  Potter,  105  Mass.  416.  See  post,  sect.  702,  as  to  erections  under  a 
mistake  of  title. 

3 


§    3  REAL    PROPERTY  [PART    I. 

after  such  revocation,  to  remove  the  structure  or  lose  his 
right  of  property  therein.1  But  where  the  person  erecting 
the  structure  is  the  owner  of  the  soil,  or  has  an  interest  in 
the  land,  then  it  is  more  difficult  to  determine  from  the 
various  circumstances  under  which  the  question  may  ar 
when  the  annexation  is  sufficiently  permanent  in  its  charac- 
ter, in  order  to  merge  the  thing  attached  into  the  realty. 
This  subject  is  known  as  the  law  of  fixtures. 

§3.  Fixtures.  —  Fixture-  are  those  things,  which,  per- 
sonal in  their  nature,  become  realty  by  reason  <>f  their 
annexation  to  the  Boil,  Bucb  annexation  being  made  by  bobs 
one  having  an  interest  in  the  soil.  They  are  removable  or 
not,  according  to  the  circumstances  of  each  ease.  In  the 
first  place,  the  attachment  must  be  of  a  permanent  and  legal 
character.  If  there  is  no  attachment  or  annexation,  the 
thini:-  remains  personal  property.  Hut  the  annexation  may 
be  actual  or  constructive.  Aetual  annexation  is  where  the 
thing  is  annexed  by  actual  attachment  to  the  soil,  a-  ft 
house  built   upon   a    brick    foundation,  or   fence.-   with] 

embedded  in  the  soil.  Constructive  annexation  is  where  the 
thing  is  fitted  for  use  in  connection  with  the  premises,  and 
is  more  or  less  necessary  to  their  enjoyment,  but  it  is  not 
firmly  attached.  Such,  for  example,  are  keys,  movable 
window  blinds,  doors,  etc.  In  the  second  place,  since  the 
thinjr  assumes  the  character  of  a  fixture,  because  of  its 
annexation  to  the  soil,  it  must  follow,  that  if  there  can  be  a 
legal  severance  it  will  reassume  the  character  of  personal 
property  and  cease  to  be  a  fixture.  The  right  to  remove 
fixtures  depends  upon  the  character  of  the  annexation  and 
the  effect  of  severance   upon  the   land,  and  the  relation  of 

1  Tapley  v.  Smith,  IS  Ble.  12;  Russell  d.  Richards,  10  M  .  129;   K 
School  District,  So  N.   H. 480;    Ooleman   p.   Lewis,   27   IV  ~~:     291  j   B 
Kirk,  12  Rich.  54;  Yatea  p.  Mullen,  24  End.  278;    Moti  p.  Palmer,  1  C 
671;  Hinckley  t>.  Baxter,  18   A.llen,  1  19;   Antoni  p.  Belknap,  102  Mass.  200; 

Kuttcr  p.  Smith,  2  Wall.   191;  O'Brien  p.  Kustenar,  J7  Mich.  292;  Sam  r. 
Kendall,  111  Mass.  298;  Goodman      Hannibal  A  St  Joseph  R.  R..  lo  Mo.  33- 
4 


CH.I.]  REAL    PROPERTY.  §    4 

the  person  making  the  removal  to  the  fixture  and  to  t In- 
land. 

§  4.  Between  what   parties  the  question  may  arise.  — 

Where  the  person  who  erected  the  fixture  has  a  permanent 
estate  in  the  land,  such  as  a  fee,  the  legal  maxim,  quidquid 
plantatur  solo  solo  certit,  applies  to  the  fullest  extent, 
qualified  only  by  the  rule  that  the  annexation  must  be  of  a 
permanent  character.  The  question,  as  to  the  right  to  re- 
move such  a  fixture,  may  arise  between  ( 1  )  heirs  and  the 
executor;  (2)  vendor  and  vendee;  (3)  mortgagor  and 
mortgagee.  In  all  three  cases,  the  general  rule  is,  that  all 
annexations  of  a  permanent  character  pass  with  the  realty 
respectively  to  the  heir,  vendee,  and  mortgagee,  and  cannot 
be  removed  by  the  executor,  vendor,  or  mortgagor.  Such 
is  the  rule,  even  though  the  severance  might  be  made  without 
any  material  injury  to  the  freehold.  But  the  permanent 
or  temporary  character  of  the  annexation  often  presents 
some  difficult  questions.  It  seems  that  the  manner  of 
fastening  offers,  in  most  cases,  the  true  solution.  If  the 
fastening  is  firm  and  secure,  then  it  gives  permanency  to  the 
annexation,  and  makes  the  thing  attached  an  immovable 
fixture.  Such  would  be  engines,  boilers,  dye-kettles,  cotton- 
gins,  and  all  other  kinds  of  machinery  wrhich  are  firmly 
attached  to  the  building  by  rods  and  bolts  passing  through 
the  joists  and  timber,  as  well  as  houses  and  other  buildings, 
erected  upon  a  firm  foundation,  would,  as  between  the  heir 
and  executor,  vendor,  and  vendee,  and  mortgagor  and  mort- 
gagee, constitute  a  part  of  the  realty,  and  therefore  pass 
with  it.1 


1  Hill  v.  Sewald,  53  Pa.  St.  274;  Voorhies  v.  Freeman,  2  "Watts  &  S.  116 
Union  Bank  v.  Emerson,  15  Mass.  159;  Noble  v.  Butterwortb,  19  Pick.  314 
Richardson  v.  Copeland,  6  Gray,  53fi;  Tifft  v.  Horton,  53  N.  Y.  377;  13  Am 
Rep.  937;  Potter  v.  Cromwell,  40  N.  Y.  273;  Day  v.  Perkins,  2  Sandf.  Ch 
359;  Hill  v.  Wentworth,  28  Vt.  428;  Sweltzer  v.  Jones,  35  Vt.  317;  Hays  c 
Doane,  11  N.  J.  Eq.  98;  Quinby  v.  Manhattan  Cloth,  etc.,  Co.,  24  N.  J  Eq 
260 ;  Powell  v.  Monson  Co.,  3  Mason,  459 ;  Parsons  v.  Copeland,  38  Me.  537 ; 

5 


§    5  REAL   PROPERTY.  [PART    I. 

§  5.  Constructive  annexation.  —  The  permanency  of  the 
annexation  may  be  presumed  from  the  weight  and  size  of 
the  object,  and  its  suitableness  for  use  and  enjoyment  on  the 
land  on  which  it  rests.  Thus  a  statue  of  hu^e  dimension-, 
resting  with  its  pedestal  upon  a  permanent  foundation, 
and  erected  upon  a  lawn  for  the  purpose  of  ornament, 
was  held  to  be  a  part  of  the  realty.1  And  where  thin:;-, 
though  temporarily  detached,  are  permanently  used  in  con- 
nection with  the  land,  they  are  fixtures  and  pass  with  the 
realty.  Thus,  Imp-pole-,  stacked  up  in  piles,  rolls  in  an 
iron  mill,  1  \  1 1 1 ir  loose  in  the  mill,  fencing  material-,  etc., 
were  held  to  he  fixtures,  even  though  they  were  at  the  time 
detached  from  the  soil.'-  But  where  the  attachment  is  only 
for  the  purpose  of  keeping  the  thiie_r<  steady,  and  they  v. 
not  specially  adapted  to  use  upon  the  premises  in  question, 
the  simple  fastening,  which  may  exist,  will  not  give  to  them 
the  character  of  permanent  fixtures.  Thus,  looms  and 
cording  machines,  fastened  by  screws  to  the  floor,  a  large 
ice  chest  used  in  a  tavern,  and  other  Buch  articles,  are  per- 
sonal property,  and  will  not  pass  with  the  realty  to  the 
heir,  vendee,  or  mortgagee.      A  great  many  things,  such  as 

Piercer.  George,  108  Mass.  78:  Hill  p.  Hill,  18  Pa.  St  521  :   II  Res  r.  Cen- 
tral National  Bank,  66  N.  V.  489;  Burnsides  r.  Twitehell,  i    V  11.  890;  G 
v.  Phillips,  26  Gratt.  T.'.i' :  21  Am.  Rep.  ton  p.  Clawson,  2  Strobh. 

478;  McKim  v.  Mason,  3  Md.  Ch.   186;  Latham  p.   Blakely,  70  N.  0, 
Richardson  p.  Borden,  42  Miss.  71;  1  Am.  Rep.  695;  l>>':il  p.  Palmer. 
C.  582;  Alvord,  etc.,  Co.   p.  Gleason,   86  Conn.  86;  Sparks  p.  State  Bank,  7 
Blackf.  469;  Brennan  v.    Whittaker,    15  Ohio  St.  446;   Lands  v.  Pfieffer,  10 
Cal.  258;  Stockwell  v.  Campbell,  89  Conn.  362;  11  Am.  Rop.  393. 
1  Snedeker  p.  Waring,  V2  N.  Y.  170. 

^  Bishop  r.  Bishop,  11  N.  Y.  1.".;  Wadleigh  p.  .Tanvrin.  11  N.  H.  508;  Hill 
v.  Sewald,  58  Pa.  St.  -7  I ;  Voorhies  p.  Freeman,  2  Watts  &S  1 1  ;  <>.  ■  drich  /-. 
Jones,  2  Hill.  L42;  Meig's  Appeal.  62  Pa.  St.  28;  1  Am.  Rep.  872;  Redlor  p. 
Barker.  4  Ran.  44">;  Brock  p.  Smith,  14  Ark.  481;  McLaughlin*.  Johnson, 
46  111.  163;  Fulton  p.  Norton,  64  Me.  410;  Glidden  p.  Bennett.  48  N.  11. 
Smith  o.  Price,  89  111.  28. 

■{  Murdock  p.  Gifford,  IS  N.  Y.  28;  Creason  v.  Bl  >ut.  17  John-.  116; 
hies  p.  McGinnis,  48  N.  V.  278;  Gale  p.  Ward,  14  Mass.    52;  Union  Bank  r. 
Emerson,   15  Ma*-.  169;  Park  o.  Hiker.  7   Allen.  78;  Pierce    >.  Georg 
Mass,  78;  11   Am.  Rep.  310;   Blanche  p.  Rogers,  26  N.  .1.  Bq,  .<  rs  r. 

6 


CII.  1.]  REAL    PROPERTY.  §    0 

rolls  in  an  iron  mill,  doors,  stone  steps,  etc.,  which,  when 
actually  fitted  for  use  and  attached  to  the  promises,  are  held 
to  be  permanent  fixtures,  remain  personal  property  until  so 
fitted  and  attached,  though  they  may  be  deposited  upon  the 
land.1  When  the  question  arises  between  mortgagor  and 
mortgagee,  the  fixture  is  not  removable,  whether  it  is  an- 
nexed  by  the  mortgagor  before  or  after  the  execution  of  the 
mortsragre.2  The  rule  as  to  fixtures  is  the  same  between 
debtor  and  creditor,  and  the  heir  or  vendee  and  the  widow, 
in  respect  to  the  premises  set  out  to  her  for  dower.8 

§  6.  Question  of  fixtures  between  landlord  and 
tenant. — When  the  question  arises  between  landlord  and 
tenant,  or  remainder-man  and  executor  of  tenant  for  life, 

Brockaw,  25  N.  J.  Eq.  496;  Swift  o.  Thompson,  9  Conn.  63;  Hill  v.  Sewald, 
63  Pa.  St.  274;  Fullam  v.  Stearns,  30  Vt.  443;  Wade  v.  Johnstone,  25  Ga. 
331 ;  Feimster  v.  Johnston,  64  N.  C.  259;  Childress  v.  Wright,  2  Coldw.  350; 
Terry  v.  Kobins,  13  Miss.  291 ;  Moore  v.  Smith,  24111.  512;  Taffe  v.  Warnick, 
3  Blackf.  Ill;  Burk  v.  Baxter,  3  Mo.  207;  Graves  v.  Pierce,  53  Mo.  423. 

1  Johnson  v.  Mehaffy,  43  Pa.  St.  308:  Woodman  v.  Pease,  17  N.  H.  282; 
Burnside  v.  Twitchell,  43  N.  H.  390;  Peck  v.  Batchelder,  40  Vt.  233;  Bliss  v 
Misner,  2  Hun,  391 ;  Noble  v.  Sylvester,  42  Vt.  146. 

2  Roberts  v.  Dauphin  Bank,  19  Pa.  St.  74;  Richardson  v.  Copeland,  6  Gray, 
536;  Haskin  v.  Woodward,  45  Pa.  St.  42;  Crane  v.  Brigham,  11  N.  J.  Eq.  30; 
Robinson  v.  Prestwick,  3  Edw.  Ch.  246 ;  Voorhies  p.  McGinnis,  48  N.  Y.  278  ; 
Naples  v.  Millon,  31  Conn.  598;  Burnside  v.  Twitchell.  43  N.  H.  390;  Lynde 
v.  Rowe,  12  Allen,  100;  Quinby  v.  Manhattan,  etc.,  Co.,  24  N.  J.  Eq.  2u0; 
Millikin  v.  Armstrong,  17  Ind.  450;  McKin  v.  Mason,  3  Md.  Ch.  186;  Cull  wick 
v.  Swindell,  L.  R.  3  Eq.  249.  But  the  mortgagor  may  remove  the  fixtures 
erected  by  him,  where  he  has,  expressly  or  by  necessary  implication,  reserved 
the  right  to  do  so.  Waterfall  v.  Penistone,  6  E.  &  B.  87  G;  Crane  v.  Brigham, 
11  N.  J.  Eq.  30;  Burnside  v.  Twitchell,  43  N.  H.  390;  Crippen  v.  Morrison, 
13  Mich.  23.  A  chattel  mortgage  of  the  fixture  executed  before  or  contempo- 
raneous with  its  annexation,  will  have  priority  over  a  prior  mortgage  of  the 
realty.  Tifft  v.  Horton,  53  N.  H.  377;  13  Am.  Rep.  537;  Eaves  v.  Estes,  10 
Kan.  314;  15  Am.  Rep.  345.  See  also  Ropps  v.  Barker,  4  Pick.  238;  Mc- 
Clintock  v.  Graham,  3  McCord,  553;  Bringloff  v.  Munzenmaier,  20  Iowa, 
513. 

3  Goddard  v.  Chase,  7  Mass.  432;  Farrar  v.  Chanffetete,  5  Denio,  527; 
Powell  v.  Monson  Co.  3  Mason,  459;  Hutchman's  Appeal,  27  Pa.  St.  209; 
Way  v.  Way,  42  Conn.  52;  Pemberton  v.  King,  2  Dev.  376  Where  the 
debtor  is   a  tenant,  and  he  has  the  right  to  remove  the  fixtures,  his  judg- 

7 


§    6  REAL   PROPERTY.  [PAST    I. 

in  respect  to  the  fixtures  placed  upon  the  land  by  the  tenant 
for  years,  and  for  life  respectively,  a  more  liberal  rule  is 
followed.  The  general  rule,  above  alluded  to,  that  every- 
thing permanently  annexed  to  the  soil  becomes  a  part  of 
the  realty,  and  cannot  be  removed,  still  holds  good.1  But 
there  are  certain  exceptions,  which  are  created  in  behalf  of 
the  tenant  in  respect  to  certain  classes  of  fixtures.  The 
tenant  is  permitted  to  remove  a  fixture,  which  falls  within 
one  of  these  classes,  even  though  firmly  affixed  to  the  soil, 
provided  such  removal  will  not  result  in  any  permanent 
and  material  injury  to  the  freehold.  These  are  (  1  )  trade 
fixtures;  (2)  agricultural  fixtures;  and  (3)  fixtures  for 
domestic  use  and  convenience.  Until  lately,  the  common-law 
rule  was  relaxed  only  in  favor  of  trade  fixtures,  while 
agricultural  and  domestic  fixtures  received  the  same  strict 
construction,  as  is  applied  to  all  fixtures  between  the  heir 
and  executor,  and  other  classes  above  mentioned.  The  ten- 
dency of  the  law  at  the  present  day  is  t«>  permit  the  tenant 
to  remove  all  fixtures  he  may  attach  to  the  Boil,  which 
come  under  one  of  these  classes,  and  which  can  be  removed 
without  permanent  injury  to  the  premises.1  Among  tin- 
fixtures  erected   for  the  purpose  of  trade  and  manufacture 


ment-creditor   may  under  an    execution  against  personal  property  levy  and 
sever   the    same    from   the   fret-hold.     Minshall  o.   Lloyd,  -    M.   A   W 
2  Smith's  Ld.  Cas.  (7th  ed.)  217;  O'Doanell  v.  Hitchcock,  11^  Mass.    401; 
Overton  p.  Williston,  31   Pa.  St.  16") :  State  v.  Bonham,  18  Ind.  281. 

1  Elwes  o.  Maw,  3  Bast,  88;  2  Smith's  Ld.  Cas.  212;  Ford  ».  Cobb,  20 S 
Y.  344;  Tifft  v.  Horton,  63  N.   V.  ;'.77  ;  13   Am.  Rep.  537  ;  Madigan   ».  Mc- 
Carthy, 108  Mass.  37ii;  11  Am.  Rep.  871. 

*  Capen  v.  Peckham,   35  Conn.  SS ;  s.  e.  9   Am.  Law  Re-,    (v.  s.)   136; 
Seeger  v.  Pettit,  77  Pa.  St.  437 :  1^  Am.  Rep.  462;  Elwes     .  M  i  re,      Bast, 
38;  2  Smith's  Ld.  Cas.  278;  Merritt  o.  Judd,  14  Cal.  69;  H->.rkiH--    .  - 
26  Ala.  493;  Wing  t>.  Gray,  86  Vt.261  ;  Weston  r.  Weston,  102  M  us.  514; 
Van  Ness  v.  Packard,  2  Pet.  187;  Perkins  r.  Swank,  43  Miles,  849;  Omboarj 
v.  Jones,  19  N.  Y.  284;  Dubois  v.  Kelly,  10  Barb  196;  Wall  ».  Hinds,  4 
Gray,  250;  Peck  v.  Batcbelder,  40  Vt.  2  8;  Montague  <•.  Dent,  10  Mich. 
Rogers  v.  Crow,  40  Mo.  *.M  ;  Hays  v.  Doaiie,  11   N.  .1.  Bq.  81 ;  Providence  (ta* 
Co.  t>.  Thurber,  2  R.  1.  1"«;  Jarecbi   v.  Philharmonic  Society,  79  Pa.  St.  403; 
Antoni  y.  Belknap,  102  Mass.  193. 
8 


CII.    I.]  REAL    PROPERTY.  §    7 

by  a  tenant,  which  are  held  to  be  removable  by  him  at  the 
termination  of  his  tenancy,  are  the  following:  Vats  and 
coppers  of  a  soap  boiler,  cider  mills  and  presses,  buildings 
erected  for  trade,  lire  engines  in  a  colliery,  kettles  in  distil- 
leries, store  fixtures,  etc.1  Nursery  trees  are  held  to  be 
such  an  agricultural  fixture  as,  when  planted  by  the  tenant 
for  the  purpose  of  sale,  to  be  capable  of  being  removed.2 
So,  also,  are  stoves,  gas  fixtures,  and  other  articles,  erected 
and  attached  to  the  house  by  the  tenant  for  his  domestic  use 
and  convenience.3 

§  7.  Ti-.:i"  of  removal. — If  the  tenant  desires  to  exer- 
cise the  right  to  remove  fixtures,  he  must  do  so  during  his 

tenancy,  or  at  least  while  he  is  in  possession  and  holding 
over.  If  the  landlord  has  entered  and  resumed  possession, 
his  right  is  gone,  and  the  fixtures  become  the  property  of 
the  landlord.4     But  if,  at  the  expiration  of  his  term,  the 

1  Elwes  v.  Mawe,  3  East,  38 ;  2  Smith's  Ld.  Cas.  278 ;  Poole's  Case,  1  Salk. 
368;  Holmes  v.  Tremper,  20  Johns.  29;  Robinson  v.  Shuler,  5  Cow.  323; 
Ford  v.  Cobb,  20  N.  Y.  344;  Torrey  v.  Burnett,  38  N.  J.  L.  457;  20  Am. 
Rep.  421 ;  Gaffield  v.  Hapgood,  17  Pick.  192 ;  Hanrahan  v.  O'Reilly,  102  Mass. 
201;  Holbrook  v.  Chamberlin,  116  Mass.  155;  17  Am.  Rep.  146 ;  O'Donnell 
v.  Hitchcock,  118  Mass.  401;  Swift  v.  Thompson,  9  Conn.  63;  Van  Ness  v. 
Packard,  2  Pet.  137;  Taffe  v.  Warnick,  3  Blickf.  Ill;  Gravest.  Pierce,  53 
Mo.  423;  Cowden  v.  St.  John,  16  Iowa,  590;  Lanphere  v.  Lowe,  3  Neb.  131. 
See  Guthrie  v.  Jones,  108  Mass.  191 ;  O'Brien  v.  Kusterer,  27  Mich.  289. 

2  Penton  v.  Robert,  2  East,  88;  Miller  v.  Baker,  1  Mete.  27;  Whitmarsh  v. 
Walker,  lb.  313;  Brooks  v.  Galster,  51  Barb.  196;  Maples  v.  Millon,  31  Conn. 
o98;  Price  v.  Brayton,  19  Iowa,  309.  See  Jenkins  v.  Gething,  2  Johns.  &  H. 
520.  The  tenant  cannot  remove  manure  made  upon  the  farm.  Fay  v.  Muzzey, 
13  Gray,  53;  Lewis  v.  Jones,  17  Pa.  St.  262;  Ruckmann  v.  Outwater,  28  N.  J. 
L.  581.     Contra,  Smithwick  v.  Ellison,  2  Ired.  326. 

3  Beck  v.  Rebow,  1  P.  Wins.  94;  Lawton  v.  Lawton,  3  Atk.  15;  Grymes  v. 
Boweren,  6  Bing.  437;  Snedeker  v.  Waring,  12  N.  Y.  170;  Lawrence  v.  Kemp, 
1  Duer,  363;  Antoni  v.  Belknap,  102  Mass.  193;  Vaughen  v.  Haldeman,  33 
Pa.  St.  522;  Hays  v.  Doane,  11  N.  J.  Eq.84;  Montague  v.  Dent,  10  Rich.  135; 
Philbrick  v.  Ewing,  97  Mass.  133;  Rogers  v.  Crow,  40  Mo.  91 ;  McCracken  v. 
Hall,  7  Ind.  30. 

*  Weston  v.  Woodcock,  7  M.  &  W.  14;  Dingley  v.  Buffum,  57  Me.  381  ; 
Leader  v.  Homewood,  5  C.  B.  (n.  s.)  54  j;  Burk  v.  Hollis,  98  Mass.  55;  Beers 
v.  St.  John.  16  Conn.  322;  Pugh  v.  Arton,  L.  R.  8  Eq.  626;  Connor  v.  Coffin, 

9 


$    8  REAL    PROPERTY.  [PART    I. 

tenant  accepts  a  new  lease,  in  which  there  is  no  reservation 
of  the  right  to  remove  the  fixtures  erected  under  the  first 
lease,  the  tenant's  right  in  the  fixture  i<  lost.1  And  if  the 
term  is  forfeited  by  any  act  of  th<-  lessee,  his  assignee  or 
sublessee,  has  a  reasonable  time,  after  such  a  termination 
of  the  lease,  in  which  to  remove  the  fixtures 

§  8.  Emblements.  —  If  growing  crop-  are  planted  by  the 
owner  of  the  soil,  they  form  a  pari  of  the  realty.  But  if 
they  arc  planted  by  a  tenant,  holding  under  the  owner,  then 
they  are  personalty  as  regard-  the  owner,  at  leasl  during  the 
continuance  of  the  tenancy,  but  as  a  rule,  really  in  respect  to 
all  others.  Whether  he  has  a  right  to  the  growing  crop-, 
after  the  termination  of  his  lease,  depends  upon  the  cer- 
tainty or  uncertainty  of  it-  duration.  This  right  is  called 
emblements.  When  the  termination  of  the  estate  depends 
upon  an  uncertainty,  the  tenant  or  hi-  personal  representa- 
tives will  have  emblements,  coupled  with  the  right  of  entry 
for  the  purpose  of  working  the  crops,  until  they  are  ripe 
for  harvesting.  This  subject  will  be  specially  noticed  in 
discussing  the  characteristics  of  the  different  estates.1 

§  9.  Trees.  —  As  we  have  seen  above,  trees  constitute  a 
part  Of  realty,  being  products  of  the  soil,  which  are  not 
planted  annually.  If  the  trunk  of  a  tree  is  wholly  within 
the  boundaries  of  one  man's  land,  the  entire  tree  belongs  to 
him,  even  though  the  branches  and  root-  may  find  their  way 

'."J  N.  II.  541  :  Mutter  r.  Smith,  2  Wall  491 ;  Haflick  v.  St.>l>er.  11  Ohio  St. 
482;  Cromie  ;•.  Hoover,  10  Ind.  69;  Dubois  o.  Kelly,  10  Barb.  I  I  toon  v. 
Penn,  13  111.  529;  Davis  v.  Moss,  38  Pa.  St.  340;  Whipley  r.  Dewey,  8  Cal. 
36.  In  the  case  of  tenants  for  life  or  at  will,  the  rule  is  somewhat  relaxed, 
and  they  are  permitted  to  remove  their  fixtures  after  the  expiration  of  the 
term.  Weston  r.  Woodcock,  7  If.  &  W.  14;  Ombony  v.  Jones,  19  X.  Y. 
284  ;  Haflick  v.  Stober,  supra.  And  the  time  for  removal  may  at  any  time  be 
extended  by  agreement  of  the  parties.  Torrey  v.  Burnett,  38  N.  J.  L.  457; 
20  Am.  Rep.  421 ;  McCracken  o.  Hall.  7  Ind.  30;  Van  Rensselaer  ft,  Penni- 
man,  6  Wend.  569, 

1  Laughran  v.  Ross,  4.r,  N.  Y.  792;  6  Am.  Rep.  173. 

2  Stansfleld  ».  Portsmouth,  4  C.  B.  (w.  s.)  119. 
5  Bee  nost,  seels.  70,  71. 

10 


•CII.   i]  REAL    PROPERTY.  §    10 

into  the  land  of  the  adjoining  owner.  Tiie  adjoining  owner 
need  not  endure  this  trespass,  but  may  eut  off  such  project- 
ing roots  and  branches.  If  the  tree  stands  upon  the  boun- 
dary line,  so  that  a  part  of  the  tree  is  on  either  side,  the 
tree  is  then  the  joint  property  of  both,  and  neither  can 
remove  or  injure  it  without  the  consent  of  the  other.1 

§  10.  Double  ownership  In  lands. — Technically,  the 
law  knows  no  double  ownership  in  lands,  or  in  any  other 
kind  of  property.  But,  since  land  is  made  up  of  compos- 
ite elements,  the  soil  itself,  the  trees,  and  other  products 
and  annexations  upon  it,  and  the  minerals  and  other  deposits 
under  it,  it  may  be  divided  up  into  these  elements,  so  that 
one  man  may  own  the  trees  and  erections,  another  the  sur- 
face, and  a  third  a  mine  beneath.  A  sale  of  the  trees,  if  it 
satisfies  the  requirements  of  the  Statute  of  Frauds,  by  being 
in  writing,  gives  to  the  vendee  a  right  of  property  in  the 
standing  trees,  with  the  right  to  enter  upon  the  land  for  the 
purpose  of  cutting  and  transporting  them.2  But  if  the 
contract  be  executory,  and  not  in  the  nature  of  a  deed,  then 
no  title  to  the  standing  trees  passes  to  the  vendee.  He 
simply  has  a  license  to  come  upon  the  land  and  cut  them.3 
So  there  may  be  a  separate  right  of  property  in  a  house,  or 
a  room,  or  in  a  mine.4 

1  Masters  v.  Pollie,  2  Roll.  Rep.  141 ;  Hutchings  v.  King,  1  Wall.  59 ;  Holder 
v.  Coates,  1  Moo.  &  M.  112;  Skinner  v.  Wilder,  38  Vt.  115;  Lyman  v.  Hale 
11  Conn.  177;  Dubois  v.  Beaver,  25  N.  Y.  121;  Hoffman  v.  Armstrong,  48 
N.  Y.  201 ;  Griffin  v.  Bixby,  12  N.  H.  451;  3  Kent's  Com.  438 ;  1  Washb.  on 
Real  Prop.  11,  12. 

2  Carrington  r.  Roots,  2  M.  &  W.  248;  Warren  v.  Leland,  2  Barb.  613 
Pattison's  Appeal,  61  Pa.  297;  Whipple  v.  Foot,  2  Johns.  423;  Green  v.  Arm 
strong,   1  Denio,  550;  McGregor  v.   Brown,  10  X.  Y.  117;   Drake  v.  Wells 

11  Allen,  144;   Clap  v.  Diaper,  4  Mass.  266;  Kingsley  v.  Holbrook,  45  N.  H 
319;  Gardiner  Mfg.  Co.  v.  Heald,  5  Greenl.  11  Allen  144;  Knotts  v.  Hydrick 

12  Rich.  314;  Westcott  v.  Delano,  20  Wis.  516;  Rich  v.  Zeilsdorf,  22  Wis, 
544 ;  See  post,  sect.  799. 

3  Drake  v.  Wells,  11  Allen,  142;  Douglass  v.  Shumway,  13  Gray,  502; 
-Clark  v.  Way,  1 1  Rich.  621 ;  Nettleton  v.  Sikes,  8  Mete.  35.     See  post  sect.  799. 

*  Harris  v.  Ryding,  5  M.  &  W.  60 ;  Stoughton  v.  Lee,  1  Taunt.  402 ;  Stock- 

11 


§11  HEAL    PROPERTY.  [PAST    I 

§  11.  Lands,  tenements,  and  hereditaments.  —  What 
is  included  under  the  term  land.-,  has  been  discussed  in  the 
preceding  pages.  Tenements  are  those  things  which  can  be 
holden.  It  is  a  word  derived  from  the  feudal  system, 
and  signifies  anything  which  is  held  in  tenure.  Heredita- 
ment is  any  property  which  is  heritable.  Hereditaments 
are  of  two  kinds,  corporeal,  that  is,  everything  of  a  sub- 
stantial nature,  such  as  land-,  houses,  mines,  etc.  ;  in<-'>rpo- 
real,  or  those  species  of  real  property,  which  are  not 
tangible,  and  arc  more  properly  rights  in,  than  rights  to,  or 
of,  real  property.  The  Roman  jura  in  re  alieno,  comprise 
to  some  extent  this  class  of  rights  of  property. 

well  v.  Hunter,  11  Mete.  448;  Adams  v.  Briggs,  7  dish.  301 ;  Canfield  r.  Ford, 
28  Barb.  3 : 5 « '■ ;  Gloninger  v.  Franklin  Coal  Co.,  55  Pa.  St.  9 ;  Proprietors  i> 
Lowell,  1  Mete.  638 ;  Otis  v.  Smith,  9  Pick.  293  ;  Shades  v.  McCormick,  4  L-wa, 
375;  Cheeseborough  v.  Green,  10  Conn.  31*;  Green  v.  Putnam,  8  Cush.  21  ; 
Caldwell  v.  Fulton,  31  Pa.  17.">;  Clement  v,  Youngmann,  40  Pa.  St.  344;  Zinc 
Co.  v.  Franklinite  Co.  13  N.  J.  322.  See  po3t,  sects.  020,  021,  ad  to  the  duties 
of  such  "double"  owners. 

12 


CHAPTEK    II. 

THE  PRINCIPLES  OF  THE  FEUDAL  8T8TEM. 

Section  19.  What  is  tenure. 

20.  Feudal  tenure. 

21.  Feud  or  Fief. 

22.  Subinfeudation. 

23.  The  manor  and  its  system  of  dividing  up  its  lands. 

24.  Feoffment  and  livery  of  seisin. 

25.  Tenure  in  the  United  States. 

26.  Estates,  classes  of. 

§  19.  What  is  tenure.  — It  may  be  stated  as  a  general 
rule,  though  controverted  by  eminent  authority,  that  in 
any  system  of  jurisprudence,  there  cannot  be  an  absolute 
ownership  in  lands.  The  right  of  property  or  interest  in 
them  must  always  be  qualified,  that  interest  being  known 
in  the  English  and  American  law  as  an  estate.  A  man  can 
have  only  an  estate  in  the  land,  the  absolute  right  of  pro- 
perty being  vested  in  the  State.  An  estate  has,  in  respect 
to  real  property,  the  three  elements,  the  right  of  posses- 
sion, right  of  enjoyment,  and  right  of  disposition,  subject  to 
the  right  of  the  State  to  defeat  it,  and  appropriate  it  to  the 
public  use,  or  for  the  public  good.  In  what  cases,  and 
under  what  circumstances,  the  State  can  exercise  this  power 
of  appropriation,  and  to  what  extent  the  rights  of  posses- 
sion, enjoyment  and  disposition  may  be  limited  by  the 
imposition  of  restrictions,  depends  upon  the  policy  of  each 
system  of  jurisprudence.  In  some  States  the  restrictions 
are  numerous,  while  in  others  they  are  few,  the  right  of 
property  being  almost  absolute  in  the  individual.  But 
nowhere  can  the  private  right  of  property  be  said  to  be 
absolute.  The  absolute  right  of  property  being  in  the  State, 
the  right  of  ownership,  which  an  individual  mav  acquire, 

*13 


§    20  PRINCIPLES    OF    FEUDAL    SYSTEM.  [PART   I. 

must,  therefore,  in  theory  at  least,  be  held  to  be  derived 
from  the  State,  and  the  State  has  the  right  and  power  to 
stipulate  the  conditions  and  terms,  upon  which  the  land 
may  be  held  by  individual-.  These  conditions  and  terms» 
and  the  rights  and  obligations  arising  therefrom,  constitute 
what  is  known  as  tenure  or  land  tenure. 

§  20.  Feudal  tenure. — The  English  common  law  of 
real  property,  the  source  of  our  own  law,  is  founded  upon 
the  doctrines  of  the  feudal  system.  It  i<  n< >t  proposed  t«> 
present  hen;  a  detailed  account  of  that  barbaric  sy-tom  ; 
for,  although  it  long  survived  the  necessities  of  the  barbaric 
life,  which  brought  it  into  existence,  it  has  for  some  time 
ceased  to  exist,  and  only  prevailed  in  this  country  to  a 
limited  extent.  But  a  passing  notice  must  be  given  to  it, 
in  order  to  explain  the  terms  and  phrases,  which  have  been 
handed  down  to  as  from  the  feudal  age,  and  which  we  now 
find  in  daily  application  to  the  law  of  real  property.1  Ac- 
cording to  the  feudal  theory,  all  estates  werederived  from  the 
king.  lie  was  called  the  lord  paramount,  and  in  him  was 
vested  the  absolute  right  of  property.  As  a  return  or  com- 
pensation for  the  possession  and  enjoyment  of  the  land,  the 
owners,  or,  as  they  were  called,  vassals,  were  obligated  to 
render  the  king  certain  service-.,  the  failure  to  perform 
which  defeated  the  estate,  and  caused  it  to  revert  to  the  lord 
paramount.  The  obligation  of  citizenship,  apart  from  tin- 
obligations  of  a  tenant  of  lands,  was  unknown  to  the 
feudal  age.-'  It  is  not  known  positively  whether  the  feudal 
system  prevaile  1  to  any  extent  under  the  Saxon  Laws  ;;  but 

•The  present  chapter  i>  constructed  on  the  supposition  that  the  student 
U  familiar  with  the  history  of  I  no  as  presented  by  Bimkstone. 

and  it,  therefore,  consists  only  of  odds  La,  which  serve  rather  i»>  sugges- 

tions, than  explanations,  of  the  feudal  system,  and  are  designed  to  call  the 
reader's  special  atte  tion  to  th  >so  principles  which  still  continue  to  be  of 
peculiar  value  to  the  American  Student. 

2  1  Washh.  on  Real  Prop.  4'i.  cum-  ^  Gruisot  Bist  Civ.  108. 
8  Wash  bur  ne  cites,  as   holding   the   affir  native,  Coke.  Seidell,    Sir   Wm. 
Temple,  Dalrymple,  Miller,  Turner,  and  Spencer;    and  supporting  the  nega- 

14 


CH.    II.]  PRINCIPLES    OF    FEUDAL   SYSTEM.  §    21 

certainly  it  is  not  met  with,  in  its  thorough  and  complicated 
organization,  until  the  conquest.  Upon  his  accession  to 
the  throne  of  England,  William  of  Normandy,  either  by 
confiscation  or  surrender,  voluntary  or  involuntary,  brought 
about  the  general  establishment  of  the  feudal  system. 
The  lands  of  those  who  fought  under  the  banner  of 
Harold  at  Hastings  were  confiscated  and  distributed  amoner 
the  Norman  chiefs.  And  subsequently,  in  order  to  obtain 
the  protection  guaranteed  to  all  vassals,  most  of  the  other 
land-owners  surrendered  their  lands  and  received  them 
back  as  vassals  of  the  king.  The  lands  were  distributed 
among  the  chiefs,  both  Saxon  and  Norman,  who  swore  al- 
legiance to  the  king,  and  obligated  themselves  to  render 
certain  services,  principally  military  in  their  character. 
These  chiefs  were  known  as  barons.  They  then  parcelled 
out  the  lands  allotted  to  them  among  their  adherents  or 
vassals,  who,  in  return  therefor,  performed  services  to 
their  barons  or  lords. 

§  21.  Feud  or  Fief.  —  When  land  was  conveyed  to  the 
tenant  or  vassal  it  was  called  a  feud,  fief  or  fee.  It  was  at 
first  only  for  the  life  of  the  tenant.  Under  the  early  feudal 
system  an  estate  of  inheritance  was  unknown.     Afterwards 

tive,  Chief  J.  Hale,  Craig,  Spelman,  Camden,  Sir  Martin  Wright,  Somner, 
Blackstone,  and  Barrington.  1  Washb.  on  Real  Prop.  38.  See  also,  2  Bla.  Com. 
48 ;  Co.  Lit.  76  b. ;  1  Spencer  Eq.  Jur.  9 ;  Williams  on  Real  Prop.  2,  3 ;  1  Stubbs 
Const.  Hist.  Eng.  273,  274.  Mr.  Hallam  says:  "Whether  the  law  of  feudal 
tenures  can  be  said  to  have  existed  in  England  before  the  conquest,  must  be 
left  to  every  reader's  determination.  Perhaps  any  attempt  to  decide  it  posi- 
tively would  end  in  a  verbal  dispute.  In  tracing  the  history  of  every  politi- 
cal institution,  three  things  are  to  be  considered,  the  principle,  the  form,  and 
the  name.  The  last  will  probably  not  be  found  in  any  genuine  Anglo-Saxon 
record;  of  the  form  of  the  peculiar  ceremonies  and  incidents  of  a  regular  fief, 
there  is  some,  but  not  much,  appearance.  But  they  who  reflect  upon  the 
dependence  in  which  free  and  even  noble  tenants  held  their  estates  of  other 
subjects,  and  upon  the  privileges  of  territorial  jurisdiction,  will,  I  think, 
perceive  much  of  the  intrinsic  character  of  the  feudal  relation,  though  in  a 
less  mature  and  systematic  shape  than  it  assumed  after  the  Norman  Con- 
quest."    Hallam's  Middle  Ages,  p.  88. 

15 


§    22  PRINCIPLES   OP   FEUDAL    SYSTEM.  [I'Akl    1. 

it  became  customary  to  grant  a  fief  or  feud  to  a  tenant  and 
his  sons,  and  subsequently  to  him  and  his  heirs.1  For  a 
long  time  after  the  conquest  a  vassal  could  not  alien  hi~ 
land  without  the  consent  of  the  lord.  It  was  a  persona] 
confidence  reposed  in  him,  and  a  full  power  of  alienation 
would  have  enabled  him  to  let  an  enemy  of  the  lord  into 
possession  of  his  lands.  A  similar  rule  prevailed  in  respect 
to  the  alienation  of  the  manor  by  the  lord.  The  consent 
of  the  tenant  had  to  be  obtained.1  But  the  tenant,  not- 
withstanding, had  a  restricted  power  of  alienation,  known  as 

§  22.  Subinfeudation.  —  The  tenant  could  let  out  the 
land  granted  to  him  to  sub-tenants,  who  rendered  Ben 

to  the  tenant,  while  the  tenant  remained  under  obligation 
to  the  lord  for  the  services  due  to  him.  There  was  then  no 
such  thing  a<  absolute  alienation.  The  conveyance  always 
provided  that  the  grantees  should  hold  as  tenant-  of  the 
grantor,  and  render  certain  specified  services  to  the  grantor. 
But  the  doctrine  of  subinfeudation  was  abolished  by  the 
statute  Quia  Emptores,  18  Edw.  I.,  and  the  tenant  was  given 
instead  a  free  power  of  alienation.4  The  purchaser  was  by 
the  statute  substituted  in  the  place  of  the  tenant  in  respect 
to  the  services  to  be  rendered  to  the  lord.  But  this  statute, 
as  well  as  the  magna  charta,  only  prohibited  subinfeuda- 
tion of  the  entire  feud.  In  a  grant,  therefore,  of  a  less 
estate  than  the  one  owned  by  the  tenant,  subinfeudation 
may  still  take  place/''  The  services,  which  the  tenant 
under  obligation  to  render  to  the  lord,  varied  in  character 
with  the  tenure  under  which  they  held  the  land,  and  this 
brings  us  to  the  explanation  of 

' 1  Washb.  on  Real  Prop.  40.  41.  M.  52. 

"1  Washb.  on  Real  Prop.  51  ;  2  Bla.  Uora.  57;  1  Bpence  Eq.  Jur.  I 

3  1  Washb.  on  Real  Prop.  ~>",  54:  Williams  on  Real  Prop.  8,4;  1  Spence 
Eq.  Jur.  137. 

«1  Washb.  on  Real  Pro 

6  For  si  common  example  of  modern  subinfeudation,  see  post,  sect.  182, 
where  an  assignment  is  distinguished  from  a  sublease. 

16 


CII.    II.]  PRINCIPLES    OF   FEUDAL    6YSTEM.  §    23 

§    23.   The  manor,  and  the    system  of   dividing  up   its 
lands  among' the  tenants.  —  The   sections    or    parcels,  into 

which  the  land  was  divided,  were  called  manors  and  seigno- 
ries.  The  lord  reserved  such  a  portion  of  the  manor  land  a3 
was  necessary  or  desirable  for  his  own  private  use.  The 
remainder  was  divided  into  four  parts  or  parcels.  One 
part  for  the  tenants,  from  whom  he  expected  military  ser- 
vice in  defence  of  himself  and  his  lands,  and  therefore  this 
land  was  held  under  military  tenure.  It  was  also  called  a 
proper  feud,  as  distinguished  from  improper  feuds,  -which 
constituted  a  second  part  of  the  manor  lands  given  to 
tenants,  who  were  obliged  in  return  for  the  feud  fuit,  to  give 
to  the  lord  a  certain  proportion  of  the  crops,  or  to  plough  the 
lord's  land.  This  was  called  socage  tenure.  A  third  part 
was  given  to  the  lord's  villeins  who  did  the  menial  services 
upon  the  manor,  and  were  a  species  of  agricultural  slave, 
which  was  quite  common  under  the  feudal  system,  and  has 
existed  in  Russia  within  the  memory  of  the  present  genera- 
tion. The  origin  of  the  word  villein  is  very  doubtful,  some 
deriving  it  from  villa,  a  country  farm  (Washburne).  It  is 
certain,  however,  that  they  were  not  all  villains.  The 
fourth  part  was  the  waste  land,  consisting  of  woodland, 
from  which  the  tenants  were  permitted  to  obtain  their 
estovers,  and  of  meadow  land  on  which  they  fed  their  cattle.1 
The  villeins  possessed  only  what  were  known  as  copyhold 
estates.  The  copyhold  has  never  obtained  in  this  country, 
and  there  will  be  no  further  mention  of  them.  The  other 
tenants,  being  freemen,  were  given,  what  were  called  free- 
hold estates.  The  freehold  was  at  least  an  estate  for  the 
life  of  the  tenant,  "  it  being  considered,"  Mr.  Blackstone 
ays,  "that  the  smallest  interest,  which  was  worthy  of  a 
freeman,  was  one  which  must  endure  during  his  life."2 
The  term  feud  is  properly  applicable  only  to  freeholds. 

•lWashb.   on   Real   Prop.   45-48;    1   Spence  Eq.  Jur.  52-95;    Williams 
on  Eeal  Prop.  48,  119. 
2  2  Bla.  Com.  237. 

e  17 


§    25  PRINCIPLES    OF    FEUDAL    SYSTEM.  [PABT    I. 

§  24.  Feoffment  and  livery  of  seisin.  — The  transaction 
by  which  a  feud  was  conveyed  to  a  tenant  was  called  a 
frojj'iiifnt,  and  the  operative  ceremony,  li  ■  v  or  investiture 
of  seisin.  It  will  not  be  necessary  to  describe  this  cere- 
mony in  the  present  connection,  especially  since  a  detailed 
account  of  it  is  given  eKcwheiv.1  Seijjjj,  is  an  old  legal 
term,  which  means  possession}  but  since  the  livery  of  .-■ 
was  an  incident  only  of  freehold  estates,  it  has  come  to 
have  the  more  qualified  signification  of  the  |  in,  which 

is  given  to  a  tenant  of  the  freehold.  The  seisin,  in  1 
contemplation,  is  the  estate  itself  ;  and,  as  there  can  be  but 
one  seisin  in  fee,  he  who  has  not  the  Beisin  cannot  techni- 
cally be  said  to  have  the  estate.9  There  are  two  kinds  of 
seisins,  seisin  in  fact,  and  seisin  in  deed  or  in  law.  iSeisiji 
in  fact  is  inseparable  from  actual  possession.  Seisin  in 
law  is  that  seisin  or  right  to  seisin  in  fact,  which  one  may 
have,  while  not  in  actual  possession.  Thus  if  A.  is  tenant 
for  years,  and  B.  has  the  remainder  in  fee,  A.  has  the  actual 
possession,  but  no  seisin,  since  Beisin  is  not  an  incident  of 
leaseholds.  But  B.  has  the  Beisin  in  law,  which,  when 
coupled  with  the  subordinate  possession  of  A.,  will  be  equiva- 
lent to  the  Beisin  in  fact.  Bui  if  A.  is  tenant  for  life,  In- 
takes the  whole  seisin  in  fact  for  the  benefit  of  his  own  life 
estate,  and  in  trusl  for  B.  The  subject  will  be  more  fully 
presented,  and  its  importance  explained,  in  the  chapter  on 
Remainders.3 

§  25.  Tenure  in  the  United  States.  —  In  the  charters  oi 
the  American  Colonies,  it  was  expressly  provided  that  the 
lands  shall  he  held  by  the  tenure  of  "  free  and  common 
socage,  and  not  in  capite  by  knight-service."  Therefore  it 
may  be  said  that ,  at  an  early  day,  feudal  tenures  existed 
in  this   country  to  a   limited   extent.4     But  at  the    present 

1  See  post,  scot.  770. 

1  See,  post.  Beets.  693,  694. 

3  See  post,  sects.  897,  et.  stq.,  and  sects.  693,  r>94,  696. 

4  1  Washb.  on  Real  Prop.  03,  64;   Williams  on  Heal  Prop.  6,  Rawle's  note. 

IS 


(II.    II.]  PRINCIPLES    OF    FEUDAL    SYSTEM.  §    25 

day,  with  the  exception  of  a  few  manors  still  existing  in 
the  State  of  New  York,  there  is  little  it'  any,  trace  of  them 
remaining  in  the  American  law  of  real  property.  And  so 
obsolete  has  the  ancient  doctrine  of  tenures  become,  that 
writers  of  eminence  unhesitatingly  pronounce  the  lands  in 
this  country  to  be  absolutely  allodial,  i.e.,  free  from  the 
hardens  of  tenure.'  But  all  lands  are  held  subject  to  the 
exercise  of  the  right  of  eminent  domain,  the  right  to  appro- 
priate private  lands  to  public  uses,  and  subject  furthermore 
to  the  right  of  the  State  to  control  its  use,  so  as  not  to  be 
detrimental  to  the  public  welfare.2  These  restrictions  upon 
the  right  of  property  are  not  feudal  in  their  character  ;  and 
since  in  most  State  Constitutions  it  is  provided,  that  in  the 
exercise  of  the  right  of  eminent  domain  full  compensation 
must  be  made  to  the  owners  of  the  land  appropriated,  the 
right  is  more  properly  one  which  the  sovereignty  claims  in 
respect  to  everything  which  affects  the  commonwealth. 
But  the  fact,  that  there  is  no  practical  tenure  of  lands  at 
present,  does  not  affect  the  position  assumed  in  a  preceding 
paragraph.3  The  State  has  the  right  to  impose  burdens,  if 
consistent  with  its  poliey  and  the  public  welfare,  although 
it  may  not  exercise  it.  There  is,  however,  a  species  of 
tenure,  still  existing  and  fully  recognized  in  the  United 
States,  between  tenants  of  particular  estates  and  reversion- 
ers or  remainder-men,  and  burdens  are  permitted  to  be 
imposed  upon  the  tenant.     Even  where  there  are  no  special 

In  Chisholm  v.  Georgia,  2  Dall.  470,  Ch.  J.  Jay  says :  "Every  acre  of  land  in 
this  country  was  then,  prior  to  the  revolution,  held  mediately  or  immediately 
by  grants  from  the  crown." 

1  Van  Rensselaer  v.  Smith,  27  Barb.  157;  Cornell  v.  Lamb,  2  Cow.  652; 
Coombs  v.  Jackson,  2  Wend.  155;  Van  Rensselaer  v.  Hays,  19  N.  Y.  91 ;  Van 
Rensselaer  v.  Dennison,  35  N.  Y.  400.  Pom.  Introduc.  272 ;  3  Kent's  Com. 
513. 

2  1  Washb.  on  Real  Prop.  65;  The  Commonwealth  v.  Tewksbury,  11  Mete. 
57  ;  The  Commonwealth  v.  Alger,  7  Cush.  92 ;  Taylor  v.  Porter,  4  Hill,  143 ; 
The  People  v.  Salem,  20  Mich.  479. 

3  See  ante,  sect.  19. 

19 


§    2(y  PRINCIPLES    OF    FEUDAL    SYSTEM.  [PART    I. 

burdens  of  tenure,  there  is  always  the  implied  tenure  which 
prevents  the  tenant  from  denying  the  title  of  his  landlord.1 

§  2G.  Estates,  classes  of.  —  In  the  classification  of  the 
estates,  which  may  be  created  in  lands,  four  principal  cir- 
cumstances tend  to  determine  their  natural  subdivision: 
First,  the  quantity  or  duration  of  the  intevres1  :  lly, 

the  quality  of  the  interest  ;  thirdly,  the  time  of  enjoyment  ; 
and  fourthly,  the  number  of  owners.     Under  the  head  of 
quantity,  the  first  division  is  into  freeholds  and  estates 
than  fveeh <>]<l.    Freehold-  are  then  subdivided  into  freeholds 
of inheritance  and  freeholds  not  ofinhi  A  freehold 

is  one  which  is  to  endure  for  an  uncertain  period,  which 
must,  or  at  least  may,  last  during  the  life  of  some  one, 
it  may  be  the  grantee,  grantor,  or  some  other  person. 
Estates  less  than  freehold,  or  leasehold*,  are  those  which 
are  limited  to  endure  for  a  certain  or  uncertain  number  of 
years,  the  uncertainty,  it*  any,  being  determined  by  the  will 
of  either  or  both  parties.  And  they  are  subdivided  into  es- 
tates for  years,  atwill,f  !  ir,an&atsuj} 
Estates  under  the  second  heading  are  distinguished  by  their 
qualities.  Thus  estates  may  be  either  absoluti  or  determin- 
able. A  determinable  estate  is  one  which  may  be  deter- 
mined, before  the  natural  expiration  of  its  period  of 
limitation  by  the  happening  of  some  contingency.  Deter- 
minable estates  are  of  four  kinds:  estate  conditional  at 
common  law  or  estate  tail,  estate  upon  condition,  estate  upon 
limitation,  and  conditional  limitation.  In  respect  to  their 
quality,  estates  art1  also  divided  into  legal  and  equitable 
estates.  A  legal  estate  is  one  which  arises  under,  and  i- 
recognized  by  the  common  or  statutory  law  ;  an  equitable 
estate  is  the  product  of  equity  jurisprudence, and  is  cognis- 
able solely  in  courts  of  equity.  In  reference  to  the  time  o\ 
enjoyment,  estates  are  divided  into  two  classes:  estates  in 
possession,  thai  is,  those  to  which  the  right  o\'  possession 

1  See  post,  Beet 
20 


CH.    II.]  PRINCIPLES    OF    FEUDAL   SYSTEM.  §    2G 

is  immediate  ;  and  estates  in  expectancy,  which  arc  to  take 
effect  in  possession  at  some  future  time.     Estates  in  this 
connection  may  also  be  divided  Into  executed  or  executory, 
vested  or  contingent.     An  executed  estate  is  one  in  which 
the  right  of  possession  is  immediate.     An  executory  estate 
is  one  which  takes  effect  in  possession  at  a  future  time.     A 
vested  estate  is  one  to  which  there  is  a  present  fixed  title, 
and  concerning  whose  title  there  is  no  uncertainty.     A  con- 
tingent estate  is  one  to  which  there  is  only  a  possibility  of 
acquiring  a  title  at  some  future  day,  upon  the  happening  of 
some  definite  contingency.     A  vested  estate  may  be  either 
executed  or  executory.     Thus  an  estate  for  life  is  a  vested 
and  executed  estate,  while  a  reversion  or  vested  remainder 
is  a  vested  and  executory  estate.     An  executed  estate  must, 
and  can  only,  be  vested.     There  cannot  be  an  executed  con- 
tingent, or  a  contingent  executed,  estate.     But  an  executory 
estate  may  be  either  vested  or  contingent.     Thus  a  remain- 
der to  A.  after  an  executed  estate  to  B.,  is  a  vested,  executory 
estate  ;  while  a  remainder  to  the  heirs  of  A.,  A.  being  still 
alive,  and  therefore  his  heirs  not  yet    ascertained,  is  an 
executory  contingent  estate.     In  the    fourth  classification, 
estates  are  considered  in  respect  to  the  number  of  persons  in 
whom  the  right  of  property  is  vested  ;  and  from  that  stand- 
point they  are  divided  into  two  classes  ;  estates  in  severalty, 
or  those  owned  by  one  person,  and  joint  estates,  which  are 
vested  in  two  or  more  persons.     According  to  the  peculiar 
rights  which  the  individual  co-tenants  of  joint  estates  have 
in  them,  they  are  subdivided  into  five  classes  :  joint  tenancy, 
tenancy  in  common,  tenancy  in  coparcenary,  tenancy  by 
the  entirety,   and  estate   in   partnership.      Keeping   these 
elements  in  mind  we  deduce  the  following  table  of  estates. 

21 


§   26 


PRINCIPLES    OF    FEUDAL    SYSTEM. 


[part 


TABLE  OF  ESTATES. 


FREE- 
HOLDS. 


Estates  of  Inheritance. 


Estatea  less  than 
Inheritance. 


Conventional  Life 


Legal  Life  Estates 


Estates  less  than  Fraehokl  or  Leasehold*. 


Estate  in  fee  simple. 
Estates  Tail. 

'  >r  one's  own  life. 
for  the  life  of  another. 
E-tate     for    an     uncertain 
'1     which    may    la-t 
during  life. 

tail  after  possibility 
■  t  :nct. 

•■rture. 

(   lirle-y. 

■ 

:ead. 

Estate  it  will. 

Estate  from  vear  to  rear. 

Estate  at  ;-uuVra: 


Estates  in  Severalty. 


Joint  Estates. 


Absolute  Estates. 


Joint  tenancy. 

Tenancy  in  common. 
Tenancy  in  coparcenary. 

sty. 

ership. 


I  t.  II.IIO    \     III    t    (J  j  i||| 

entirety, 
[  Tenancy  in  parte 


Determinable  Estates. 


nditional. 

.  limitation, 
i  'onditional  limitation. 
upon  condition. 
tfortgl  . 


Estates  in  Possession. 


Estates  in  Expectancy. 


Legal  Estates. 


f 

:il  list 

I   Snifl 


ion. 
Remaind 

1  'ollt 


Equitable  Estates. 


Trusts. 

Mortgage  bv  deposit  of  title 
dee 

Vendor's  and  Vendee's  lien. 


22 


CHAPTER     III. 

ESTATE    IN    FEE    SIMPLE. 

Section  36.  Definition. 

37.  Words  of  limitation. 

38.  The  power  of  disposition. 

39.  Liability  for  debts. 

§  36.  Definition.  — A  fee  simple  is  a  freehold  estate  of 
inheritance  free  from  conditions  and  of  indefinite  duration. 
It  is  the  highest  estate  known  to  the  law,  and  is  absolute,  so 
far  as  it  is  possible  for  one  to  possess  an  absolute  right  of 
property  in  lands.1  The  word  fee  without  any  qualifying 
adjective  implies  an  unlimited  estate  of  inheritance.  Such 
is  also  the  case  with  the  term  "  fee  simple  absolute."  The 
three  terms  "  fee,"  "  fee  simple,"  and  "  fee  simple  abso- 
lute," may  be  used  interchangeably  ;2  the  adjectives  in  the 
last  two  are  surplusage,  and  are  generally  used  for  the 
purpose  of  distinguishing  that  class  of  estates  from  those 
which  are  called  base  or  qualified  fees. 

§  37.  Words  of  Limitation. — The  word  "heirs"  at 
common  law  is  required  to  be  used  in  limiting  a  fee  simple, 
where  the  estate  is  acquired  by  conveyance  inter  vivos. 
And  no  equivalent  words,  which  indicate  the  intention  of 
the  grantor  to  convey  an  absolute  right  to  the  property, 
will  suffice.  If  the  conveyance  be  not  made  to  one  and  his 
heirs,  the  grantee  will  take  only  an  estate  for  his  life,  not- 
withstanding the  estate  is  limited  by  such  phrases,  as  "to 
A.  forever,"  or  "  to  A.  and  his  successors,"  or  to  his  chil- 

1  Co.  Lit.  1  a.  n. ;  2  Bla.  Com.  106 ;  1  Washb.  on  Rpal  Prop.  76. 

2  2  Bla.  Com.  106;  Co.  Lit.  1  b.;  1  Prest.  Est.  420;  2  Washb.  on  Real 
Prop.  76,  77. 

23 


§    37  ESTATE    IX    FEE    SIMPLE.  [PART    I. 

dren  or  issue  or  assigns,  and  the  like.  An  express  direction 
that  the  grantee  is  to  have  a  fee  simple  estate  will  not  sup- 
ply the  place  of  the  word  ik  heirs."  1  But  if  the  estate  be 
acquired  by  devise  or  by  legislative  grant,  the  technical 
word  "  heirs  "  is  not  necessary.  The  intention  to  create 
a  fee  simple  estate  may  in  such  cases  be  manifested  by  any 
other  words  or  forms  of  expression.3  On  the  other  hand. 
if  the  word  "heirs*"  appear-  from  the  context  of  the  will 
to  have  been  used  by  the  testator  as  a  word  of  purchase,  it 
will  be  given  that  construction,  and  the  devisee  will  take 
only  a  life  estate,  while  his  heirs  will  take  a  contingent 
remainder,  notwithstanding  that  ordinarily  the  rule  in 
Shelley's  Case  would  make  it  a  fee  simple  estate  in  the 
first  devisee.8  And  if  the  conveyance  be  to  a  corporation 
the  word  "successors"  takes  the  place  of  heir-,  ainoe 
a  corporation  cannot  have  heir-.4  All  technical  quit-claim 
deeds  pass  whatever  interest  the  grantor  has,  without 
words  of  limitation,  as  in  the  case  of  a  release  from  one 
joint  tenant  to  another,  or  by  a  disseissee  to  the  dis- 
seisor.6 But  a  partition  between  tenants  in  common  by 
mutual  grants  or  by  release   would   require  the  words  of 

1  Co.  Lit.  8  b.;  2  Prest.  Est.  8,  8;  1  Cent's  Com.  6,  not.-  1  Sponce  Eq. 
Jur.  139;  Sedgwick  v.  Laflin,  10  Allen,  430;  Kin-  v.  Barnes,  18  Pick.  84; 
Adams  v.  Ross,  30  N.  J.  L.  511 ;  Clearwater  .  Rose,  1  Blackf.  137;  Foster  ». 
Joice,  3  Wash.  C.  Ct.  408.  But  ifreference  is  made  to  another  deed  for  a  de- 
scription of  the  estate  granted,  the  words  of  limitation  may  be  omitted,  if  they 
are  contained  in  the  referenco  deed.  1  Washb.  on  Real  Prop.  88.  See,  also, 
post,  sect.  841. 

2  Rutherford  v.  Greene,  2  "Wheat.  196;  Bridgewater  p.  Bolton,  6  Mod.  100; 
Newkirk  v.  Newkirk,  2  Caines,  345;  Jackson  r.  Eousell,  17  Johns.  2S1 ;  God- 
frey v.  Humphrey,  18  Pick.  537;  Baker  v.  Bridge,  1?  Pick.  27:  2  Bla.  Com- 
108;  1  Washb.  on  Real  Prop.  85. 

3  Urich's  Appeal,  80  Pa.  St.  886;  27  Am.  Rep.  707. 

4  But  no  words  of  limitation,  not  even  "successors,"  are  necessary  in  the 
grant  of  a  fee  to  a  corporation,  unless  it  be  a  corporation  sole.  Cong.  Boo,  v. 
Stark,  34  Vt.  248;  Wilc>-N  r.  Wheeler,  47  X.  II.  490;  Beach  d.  Barnes,  U 
Vt.  15;  Overseers  o.  Sears,  22  Pick.  126;  2  Pn  st  Est  i ■'  \  \  &  Ames  on 
Corp.,  eh.  V..  sect.  1.    See  Nicoll  d.  N.  Y.  A:  Erie  R,  K..  12  N.  V   400. 

■'  1  Washb.  on  Real  Prop.  54,     B  ct  238,     T  le  rule  is  the  same 

in  a  release  by  the  tenant  for  life  to  the  reversioner.    2  Prest.  Est.  68. 

24 


CII.    III.]  ESTATE    IX    FEE    SIMPLE.  §    37 

limitation.  So  would  the  release  of  a  reversion  to  the 
tenant  for  life.1  But  where  there  is  a  trust  imposed  upon 
the  grantee  or  devisee,  a  foe  will  be  implied,  if  the  trust 
cannot  be  supported  or  performed  without  a  fee.'2  And  if 
by  devise  a  charge  is  imposed  upon  the  devisee  to  pay  a 
certain  sum  of  money,  a  fee  will  be  implied,  without  the 
use  of  any  words  of  limitation  whatever.  This  is  the  case, 
however,  only  when  the  charge  is  an  absolute  personal 
liability  of  the  devisee.  If  the  money  is  directed  to  be 
paid  out  of  the  rents  and  profits  of  the  estate,  and  the 
devisee  assumes  no  personal  liability,  in  case  of  the  failure 
of  the  rents  and  profits,  he  will  take  only  a  life  estate,  if 
there  is  nothing  else  in  the  will  indicating  the  intention  that 
he  shall  have  a  fee.3  In  England  and  in  most  of  the  States 
of  this  country,  the  rule  has  been  changed,  so  that  in  a 
devise  of  real  property  the  intention  to  convey  a  fee  simple 
will  be  presumed,  in  the  absence  of  an  express  intention  to 
the  contrary.4  In  these  States,  a  devise  to  A.  would  now 
give  him  a  fee,  while  formerly  he  would  only  have  taken  a 
life  estate.  This  abrogation  of  the  common-law  rule  has 
also  in  some  of  the  States  been  extended  to  conveyances 
inter  vivos.5     The  rule  had  in  the  course  of  time  become 

1  2  Prest.  Est.  56-62.    See  post,  sect.  239. 

2  "White  v.  Woodbury,  9  Pick.  136  ;  Sears  v.  Kussell,  8  Gray,  89  ;  Newhall 
w.Wheeler,  7  Mass.  189;  Gould  v.  Lamb,  11  Mete.  84;  Fishery.  Fields,  10 
Johns.  505 ;  Koenig's  Appeal,  57  Pa.  St.  252 ;  Angell  v.  Rosenbury,  12  Mich. 
266.     See  post,  sect.  503. 

3  Doe  v.  Richards,  3  T.  R.  356 ;  Lithgow  v.  Kavenagh,  9  Mass.  161 ;  Baker 
v.  Bridge,  12  Pick.  27 ;  Godfrey  v.  Humphrey,  18  Pick.  537 ;  Wait  v.  Belding, 
24  Pick.  138 ;  Jackson  v.  Merrill,  6  Johns.  185 ;  Jackson  v.  Bull,  10  Johns. 
148. 

4  Such  is  the  law  in  Alabama,  Arkansas,  Georgia,  Iowa,  Illinois,  Ken- 
tucky, Maryland,  Massachusetts,  Mississippi,  Missouri,  Nebraska,  New 
Hampshire,  New  York,  New  Jersey,  North  Carolina,  South  Carolina,  Texas, 
Virginia ;  1  Washb.  on  Real  Prop.  52,  note  3,  86,  note  3 ;  Williams  on  Real 
Prop.  20,  1. 

5  Such  is  the  case  in  Alabama,  Arkansas,  Georgia,  Illinois,  Iowa,  Ken- 
tucky, Mississippi,  Missouri,  Nebraska,  New  Hampshire,  New  York,  Mary- 
land, Tennessee,  Virginia,  Texas.  1  Washb.  on  Real  Prop.  52,  note  3 ;  2 
Greenl.  Cruise,  354 ;  Williams  on  Real  Prop.  19,  note  1. 

25 


§  38  ESTATE  IN  FEE  SIMPLE.  [PART  I. 

purely  arbitrary,  the  reasons  for  the  same  having  long  since 
passed  away  with  the  advancement  of  civilization. 

§  o<S.  The  Power  of  Disposition.  —  Originally  the  high- 
est estate  granted  to  a  tenant  "was  an  estate  for  life,  and 
when  afterwards  lands  were  granted  to  one  and  his  heir- 
forever,  the  heirs  were  deemed  to  be  co-equal  grantees  or 
donees  with  the  first  taker.  In  consequence,  the  power  of 
alienation  was  not  given  to  the  owner  of  Buch  an  estate. 
Subsequently  he  w&a  allowed  to  alien  it  with  the  consent  of 
the  lord  and  the  presumptive  heir.1  Then  in  the  time  of 
Henry  I.  and  II.,  the  right  w&B  given  to  defeat  the  inheritance 
<>f  all  the  heirs  except  the  oldest  son.1  Successive  changes 
of  this  character  took  place  from  time  to  time,  until  tin.' 
\'\i'c  right  of  alienation  was  given  by  the  statute  of  Quia 
Emptores,  as  an  inseparable  incident  to  an  estate  in  fee.1 
And  to  such  an  extent  is  this  right  guarded  by  the  statute, 
that  a  condition  in  absolute  restraint  of  alienation  is  made 
void.4  To  what  extent  the  power  of  alienation  may  be 
restricted,  will  be  shown  in  the  subsequent  chapter  on 
estates  upon  condition.5  The  statute  Quia  Emptores  refer- 
only  to  alienation  inter  vivos.  For  a  long  period  in  the 
history  of  the  common  law,  it  was  impossible  to  make  a 
disposition  of  a  freehold  by  will.  But  in  the  thirty-second 
year  of  the  reign  of  Henry  VIII.,  a  statute  was  passed, 
which  permitted  a  devise  of  real  estate.  The  power  of 
devising  lands  by  will  was  enjoyed  in  the  time  of  the 
Saxons,  but  was  abolished  by  the  introduction  of  the  Nor- 
man   feudal    system,   except  in   certain   favored  localities, 

1  1  Spence  Eq.  Jur.  157;  .Maine  Auo.  Law,  280;  1  Washb.  on  Real  Prop. 
78,  79, 

2  1  Spence  Eq.  Jur.  138;   1  Washb.  on  Real  Prop.  79. 

:!  Williamson  Real  Prop. 61,  62;  1  Washb.  on  Heal  Prop.  79;  Co,  Lit. 43b. 

*  1  Preat  Est,  177:  Bradley  v.  Peixoto,  8  Vas,  jr.  834;  BlacksUna  Bank 
v.  Davis,  21  Pick.  42  ;  McWiiliams  ».  Nialey,  9  Sere-  &  EL  507;  Stewart*. 
Brady,  3  Bush,  I 

5  See  p  isi .  Beet  276. 
26 


C^- 


CII.    III.]  ESTATE    IX    FEE    SIMPLE.  §39 

which  were  exempt  from  the  burdens  and  restrictions  of 
that  system.1 

§  39.  Liability  for  debts. — This  was  not  originally  an 
incident  of  freehold  estates.  They  were  first  made  liable 
to  execution  for  the  debts  of  the  owner  during  his  life 
time  by  the  statute  13  Edw.  I.,  ch.  18.  But  there  was  no 
provision  in  the  English  law,  until  Stat.  3  and  4,  Will.  IV., 
ch.  104,  for  subjecting  the  estates  of  decedents  to  the  satis- 
faction of  all  the  debts  of  the  ancestor.  In  this  country 
lands  are  generally  liable  for  the  debts  of  the  owner,  in  all 
forms  of  actions,  before  and  after  his  death,  and  in  the 
hands  of  his  heirs  and  devisees.2 

1  Res  post,  sect.  872. 

2  1  Greenl.  Cruise,  60  n. ;  Watkins  v.  Folman,  14  Pet.  63;  Wyman  v. 
Briglen,  4  Mass.  150;  see  post,  sect.  757;  Bellas  v.  McCarthy,  10  "Watts,  31;  4 
Kent's  Com.  420;  Williams  on  Eeal  Prop.  81,  Rawle's  note. 

27 


CHAPTER    IV. 

ESTATES  TAIL. 

Section  44.  Base  or  qualified  fees. 

45.  Fee  conditional  at  common  law. 

46.  Estates  tail. 

47.  Necessary  words  of  limitation. 

48.  Class*  tail. 

49.  How  estates  tail  may  be  barred. 

60.  Merger  of  tail. 

61.  Estatr-tail  after  possibility  <>t"  issue  extinct. 

62.  Estates-tail  in  th< 

§  44.  Base  «>r  qualified  iv<>s. — Whenever  a  fee  is  so 
qualified,  as  to  be  made  to  determine,  or  liable  to  be  de- 
feated, at  the  happening  of  some  contingent  event  or  act, 
the  fee  is  said  to  be  base,  qualified,  or  determinable.  There 
are  four  classes  of  such  fees,  viz:  fee  upon  condition,  fee 
upon  limitation,  a  conditional  limitation,  and  a  fee  con- 
ditional at  common  law.  Some  authors  apply  the  term 
base  fee  solely  to  the  last  class;  l«ut  for  all  practical  pur- 
poses, either  of  the  above  names  may  be  applied  to  either 
or  all.1  The  first  three  classes  will  be  treated  at  length  in 
the  chapter  on  estates  upon  condition.8 

§  45.  Fee  conditional  at  common  law. — At  an  early 
day,  as  far  back  as  the  time  of  Alfred,  it  was  the  custom  to 

limit  estates  to  one  and  particular  heirs,  instead  of  his 
heirs  in  general.  Generally,  it  was  to  the  heirs  of  his  body, 
—  i.e.,  his  issue,    his  lineal   heirs.     But  it   can  be  limited 

1  1  Washb.  on  Real  Prop.  88-91  :  -  Bla.  Tom.  109;  1  Prest  Est  4G6-475; 
Seymour's  Case,  10  Rep.  97  ;  1  Spence  Eq.  Jur.  144. 

2  See  post,  sects.  271-281. 

28 


CH.  IV.]  ESTATES    TAIL.  46    § 

to  any  ether  class  of  heirs.  If  the  first  taker  died  leav- 
ing no  heir  of  that  kind,  the  estate  was  defeated  and 
reverted  to  the  donor.  But  as  soon  as  that  class  of  heirs 
came  into  being,  as,  in  the  case  of  an  estate  to  one  and 
the  heirs  of  his  body,  upon  the  birth  of  a  child,  the  con- 
dition was  held  to  be  so  far  performed  as  to  permit 
the  tenant  to  alien  or  charge  the  land  in  fee  simple.  And 
the  subsequent  death  of  the  issue  would  have  no  effect  upon 
the  purchaser's  title.1  But,  if  no  alienation  was  made 
during  the  life  of  such  heirs  presumptive  it  would  revert  to 
the  donor  upon  the  death  of  the  tenant,  just  as  if  they  had 
never  come  into  being.2 

§  46.  Estates  tail.  —  In  consequence  of  the  readiness 
with  which  fees  conditional  could  be  converted  into  a  fee 
simple,  great  dissatisfaction  was  felt  and  manifested  by  the 
nobles  and  landed  gentry.  It  had  been  their  custom  to 
settle  their  great  estates  upon  their  oldest  sons  and  their 
issue,  in  order  to  keep  them  within  their  families,  and 
prevent  their  subdivision  into  smaller  estates.  When  fees 
conditional  were  made  by  judicial  legislation  capable  of 
alienation  upon  the  birth  of  issue,  the  protection  to  their 
entails  was  taken  away,  and  the  barons  applied  to  King 
Edward  I.  to  grant  them  a  remedy.  In  compliance  with 
this  appeal,  the  statute  "  De  Donis  Conditionalibus  "  was 
passed  in  the  thirteenth  year  of  the  reign  of  Edward  I.  By 
this  statute  fees  conditional,  which  were  limited  to  tv3  heirs 
of  one's  body,  were  made  inalienable  under  any  circum- 
stances. It  was  held  that  the  heirs  do  not  take  as  purchasers, 
but  as  special  heir ;  nevertheless,  the  ancestor  could  not  by 
any  act  of  alienation  defeat  their  interest  in  the  estate.3 

1  2  Bla.  Com.  Ill ;  2  Inst.  333  ;  Co.  Lit.  19  a,  note  110 ;  1  Spence  Eq.  Jur.  21, 
141 ;  Buckworth  v.  Thirkell,  3  B.  &  P.  652 ;  Williams  on  Keal  Prop.  42 ; 
Nevil's  Case,  7  Coke,  34  b. 

2  2  Inst.  332 ;  1  Spence  Eq.  Jur.  141 ;  Williams  on  Real  Prop.  42,  43. 

3  2  Prest.  Est.  378-380;  2  Bla.  Com.  112-116;  2  Inst.  332,  333;  1  Washb. 
on  Real  Prop.  94,  95. 

29 


§    47  ESTATES    TAIL.  [PART   I. 

The  fee  conditional  was  then  called  estate  tail.  Estates 
tail,  therefore,  to  quote  Mr.  Washburn's  definition,  "  are 
estates  of  inheritance,  which,  instead  of  descending  to 
heirs  generally,  go  to  the  heirs  of  the  donee's  body, 
which  means  his  lawful  issue,  his  children,  and  through 
them  to  his  grandchildren,  in  a  direct  line,  so  long  as  his 
posterity  endures  in  a  regular  order  and  course  of  descent, 
and  upon  the  death  of  the  first  owner  without  issue,  the 
estate  determine-."1  The  tenants  in  tail  cannot  alien  the 
estate,  but  it  has  all  the  other  characteristics  of  a  fee  simple. 
The  tenant  can  freely  commit  waste  ;  nor  is  he  under  any 
obligation  to  the  reversioner  t<>  pay  off  an  incumbrance  or 
keep  down  the  interest  on  it.: 

§   47.  Necessary  words   of  limitation.  —  In  the  creation 

of  an  estate  tail  words  of  limitation  must  be  used,  which 
indicate  clearly  what  heirs  are  t<>  take.  The  usual  form  of 
limitation  is  to  one  and  the  heirs  of  his  body.  But  any 
other  equivalent  expressions  would  be  sufficient,  provided 
the  word  "  heirs*'  was  not  omitted."  The  same  distinction 
as  to  construction  between  estates  created  by  deed  and  by 
will,  mentioned  in  connection  with  fees  simple,  applies 
here.  So  that  in  the  case  of  a  devise,  an  estate  will  be 
held  to  be  one  in  tail,  whatever  may  be  the  words  of  limita- 
tion used.     Thus  a  devise  to  A.  and  his  seed,  or  his  issue,  or 

1  1  Washb.  o:i  Real  Prop.  99;  2  Prest.  E>t.  860;  Williams  on  Real  Prop. 
43,  44. 

'  Co.  Lit.  224  a;  2  Bin.  Coin.  115;  Liford's  Case,  It  Rep*  50:  Jervis  r.  Ben 
ton,  2  Venn  251;  Chaplin  v.  Chaplin,  :'«  P.  Wms.  229.  But  a  r.veiver  may  be 
appointed  to  collect  the  rents  and  profits  of  an  estate  tail  to  keep  down  the 
interest  on  incumbrances.    Story's  Eq.  .Tur..  .-■    :.  B  ,    \ 

Sierw.  560.  Dower  and  curtesy  are  incidents  of  estates  tail.  1  Wa»hb.  on 
Ileal  Prop.  107;  Co.  Lit.  224  u;  post,  sects.  104.  116.  Tenant  in  tail  cannot 
charge  the  inheritance  with  his  I  obligations  after  his  death.    Liford's 

Case,  11  Hep.  60;  Wharton  o.  Wharton,  2  Vern.8;  Partridge  v.  Horsey,  3 
liar.    &  J.   302;    1   Cruise  Dig.  84 ;     Williamson  Real   P  B.     But   his 

interest  in  the  same,  \  i  •...  his  lifo  estate  may  be  sold  for  the  satisfaction  of  his 
debts.     1  Washb.  on  Real  Prop.  107 ;  Williams  on  Real  Pro] 

3  2  Prest.  Est.  180  182-485;  1  Washb.  on  Real  Prop.  104,  105;  Co.  Lit  20  b; 
2Bla.  Com.  115. 

30 


CH.  IV.]  ESTATE8    TAIL.  §    4.S 

his  heirs  male,  etc.,  all  showing  an  intention  to  create  an 
estate  tail,  would  be  held  a  good  limitation  of  an  estate 
tail.1  And  very  often  the  gift  will  be  construed  to  be  an 
estate  tail,  where  there  is  no  direct  limitation  to  the  heirs  of 
his  body,  as  where  there  was  a  grant  to  A.  and  if  he  should 
die  without  issue  of  his  body,  then  to  B.  The  intention  is 
so  clear  that  B.  is  to  have  it  only  after  the  termination  of 
what  would  be  an  estate  tail,  that  A.  was  held  to  have  such 
an  estate  by  implication.2     , 

§  48.  Classes  of  estates  tail. —  If  the  estate  be  limited 
generally  to  the  heirs  of  one's  body,  it  is  called  an  estate  tail 
general.  If  it  be  limited  to  particular  heirs  of  the  body, 
as  to  the  heirs  of  one's  body  upon  the  body  of  a  certain 
named  wife  begotten,  only  the  issue  of  that  particular 
wife  can  take,  and  it  is  called  an  estate  tail  special.  The 
issue  of  any  other  wife  cannot  take.3  The  special  tail,  in 
order  to  be  good,  must  be  so  limited  as  not  to  be  unlaw- 
ful.4    But  it  does  not  matter  how  improbable  the  marriage 

^Bla.  Com.  115;  Co.  Lit.  27  a;  Nightingale  v.  Burrell,  15  Pick.  104; 
Arnold  v.  Brown,  7  K.  I.  196 ;  Hill  v.  Hill,  74  Pa.  St.  173 ;  s.  c,  15  Am.  Rep. 
545. 

*  Arnold  v.  Brown,  7  R.  I.  196;  1  Washb.  on  Real  Prop.  100;  Idle  v. 
Cooke,  2  Ld.  Raym.  1152;  Hulburt  v.  Emerson,  16  Mass.  241 ;  Hayward  v. 
Howe,  12  G-ray,  49.  But  this  will  not  always  be  the  case.  Whether  an 
estate  tail  would  under  such  circumstances  be  created  by  implication,  depends 
upon  the  intention  of  the  testator,  as  gathered  from  a  consideration  of  the 
whole  will.  It  will  be  explained  in  the  chapter  on  Executory  Devises  (see 
post,  sects.  538,  542,  243),  when  and  under  what  circumstances  a  limitation 
over  upon  a  failure  of  issue  will  convert  the  prior  limitation  into  an  estate 
tail.  According  to  the  intention  of  the  testator,  it  will  either  convert  it  into 
an  estate  tail,  or,  if  the  prior  limitation  has  sufficient  words  of  limitation,  the 
prior  limitation  will  be  construed  to  be  a  fee  simple,  liable  to  be  defeated  by 
the  failure  of  issue,  and  the  limitation  over  will  take  effect  as  an  executory 
devise.  Such  was  held  to  be  the  proper  construction  in  the  case  of  Hill  v 
Hill,  74  Pa.  St.  173  ;  s.  c,  173 ;  15  Am.  Rep.  545.  See  also  Allender's  Lessee 
v.  Sussan,  33  Md.  11 ;  3  Am.  Rep.  171. 

3  2  Bla.  Com.  113,  114;  2  Prest.  Est.  413,  414;  1  Washb.  on  Real  Prop. 
102,  103. 

*  Thus,  if  the  limitation  is  to  the  issue  of  the  grantee  begotten  upon  H 
woman,  who  is  so  near  a  relative  as  to  render  the  marriage  unlawful,  the 

31 


§    49  ESTATES    TAIL.  [PAET    I. 

is,  or  that  they  would  have  issue  if  married,  the  limitation 
will  nevertheless  be  good.  Such  would  be  the  case  even 
though  the  man  and  woman  :ire  both  married  at  the  time  to 
different  parties ;  or  they  are  so  old  that  according  to  the 
ordinary  laws  of  nature,  they  are  incapable  of  procreating 
children.  The  law  will  consider  it  still  possible  for  them 
to  have  issue,  as  long  as  they  both  live.1  Another  form 
of  estate  tail  special  is  that  to  the  heir-,  male  or  female,  of 
one's  body.  In  this  case  the  inheritance  is  confined  to  the 
male  or  female  heirs  to  tie-  exclusion  of  the  other-.  And 
each  taker  must  trace  his  descent  through  an  unbroken  line 
of  that  class  of  heirs.  Thus  if  the  limitation  be  to  tie-  heir- 
male  of  one's  body,  the  grandson  by  a  daughter  could  not 
take,  nor  if  it  be  to  heirs  female,  could  the  granddaughter 
by  a  son  inherit .  Very  often  the  limitation  i-  to  the  heir- 
male  of  the  body,  then  to  the  heirs  female,  exhausting  the 
first  class  of  heirs,  before  Hie  remainder  to  the  latter  takes 
effect.  In  such  a  conveyance,  neither  tin-  grandson  by  the 
daughter,  nor  the  granddaughter  by  the  -on,  could  inherit 
the  estate,  an  i  it  would  revert  for  failure  of  issue,1  if  there 

were  no  technical  heir-,  male  or  female.. 

§  49.  How  estates  tail  may  be  barred. —  The  statute  (fa 
donia  made  the  ordinary  mode-  of  conveyance  incapable  of 
barring  entails,  but  in  the  course  of  time,  the  restraint 
upon  alienation  effected  by  this  statute  became  so  burden- 
some, practically  ex<  luding  lands  from  the  markel  as  obj< 
of  barter  or  sale,  that  the  courts  at  la-t  by  a  fictitious  con- 
trivance, aided  by  remedial  statute-,  secured  a  mean- 
alienation.  It  was  in  the  nature  of  a  6ctitious  suit,  by 
which  some  persons  laid  claim  to  the  land,  and  the  tenant 
in  tail   either    acknowledged   the    justice   of    his    claim,  or 

limitation  in  tail  would  bo  void,  and  the  donee  would  take  only  a  life  esUto. 
1  Washb.  on  Real  Prop.  103. 

1  2Prest.  Est.  395 ;  1  Washb.  on  Real  Prop.   108. 

2  2  Bla.  Com.  1  It :  2  Prest  Est.  40  J.  40  I ;  1  Washb.  on  Real  Prop.  103.  104; 
Williams  on  Real  Prop.  35;  Hulburt  v.  Emerson,  16  Mass.  Ml. 

32 


£CH.     IV.  ESTATES    TAIL.  §    49 

allowed  judgment  by  default  to  be  entered  up  against  him. 
There  were  two  modes  in  use,  viz.  :  fines,  and  common 
recoveries.  They  do  not  now  exist,  and  have  at  no  time 
existed  in  more  than  two  or  three  of  the  States  of  this 
country.  The  subject  therefore  deserves  no  farther  con- 
sideration.1 Since  then,  in  England,  it  has  qoI  been  possible 
to  keep  the  estate  entailed  for  any  great  length  of  time,  at 
the  most  only  during  the  minority  of  the  tenants.  As  soon 
as  the  tenant  became  of  age,  he  is  able  to  bar  it.  This  gave 
rise  to  what  are  known  as  marriage  settlements,  in  which 
the  lands  were  settled  on  the   husband   and  wife  for  life, 

1  The  following  quotation  from  Mr.  "Washburn  gives  a  lucid  explanation 
of  the  common  recovery,  which  was  the  most  common  and  the  most  effectual 
mode  of  barring  the  entail :  "  This  was  a  fictitious  suit  brought  in  the  name 
of  the  person  who  was  to  purchase  the  e-tatc,  against  the  tenant  in  tail  who, 
was  willing  to  convey.  The  tenant,  instead  of  resisting  this  claim  himself, 
under  the  pretence  that  he  had  acquired  his  title  of  some  third  person,  who 
had  warranted  it,  vouched  in,  or  by  a  process  from  the  court  called  this  third 
person,  technically  the  vouchee,  to  come  in  and  defend  the  title.  The  vouchee 
came  in,  as  a  part  of  the  dramatis  personce  of  this  judicial  farce,  and  then, 
without  saving  a  word,  disappeared  and  was  defaulted.  It  was  a  principle  of 
the  feudal  law,  adopted  thence  by  the  common  law,  that  if  a  man  conveyed 
lands  with  a  warranty,  and  the  grantee  lost  bi3  estate  by  eviction  by  one 
having  a  better  title,  he  should  give  his  warrantee  lands  of  equal  value  by 
way  of  recompense.  And  as  it  would  be  too  barefaced  to  cut  off  the  rights 
of  the  reversion  as  well  as  of  the  issue  in  tail  by  a  judgment  between  the 
tenant  and  a  stranger,  it  was  gravely  adjudged,  (1)  that  the  claimant  should 
have  the  land  as  having  the  better  title  to  it,  and  (2)  that  the  tenant  should 
have  judgment  against  his  vouchee  to  recover  lands  of  equal  value  on  the 
ground  that  he  was  warrantor,  and  thus,  theoretically,  nobody  was  harmed. 
If  the  issue  in  tail,  reversioner  or  remainder-man,  lost  that  specific  estate,  he 
was  to  have  one  of  equal  value  through  this  judgment  in  favor  of  the  tenant  in 
tail ;  whereas,  in  fact,  the  vouchee  was  an  irresponsible  man,  and  it  was  never 
expected  that  he  was  anything  more  than  a  dummy  in  the  game."  1  Washb. 
on  Eeal  Prop.  97,  98.  Taltarum's  Case,  Year  Book,  12  Edw.  IV.  19,  is  the 
leading  case  on  the  subject;  2  Bla.  Com.  116;  1  Spence  Eq.  Jur.  143;  Wil- 
liams on  Keal  Prop.  45-48  ;  Taylor  v.  Horde,  1  Burr.  84 ;  Page  v.  Hayward,  2 
3alk.  670.  See  the  following  American  cases,  in  which  fines  and  common 
recoveries  are  discussed  and  recognized,  but  declared  to  be  abolished.  Mc. 
Gregor  v.  Comstock,  17  N.  Y.  102;  Croxhall  v.  iSherard,  5  Wall.  2G8.  In 
Pennsylvania  they  apparently  exist  still.  Riehman  v.  Lippincott,  29  N,  J.  It. 
14;  Lyle  v.  Richards,  7  S.  &  R.  322;  Dewitt  v.  Eklred,  4  Watts  &  S.  421; 
Taylors.  Taylor,  G3  Pa.  St.  485.  They  neser  existed  in  Missouri.  Moreau 
v.  Detchemend}-,  18  Mo.  527. 

33 


§    52  ESTATES    TAIL.  [PAKT    I. 

remainder  to  the  first  and  other  sons  in  tail,  etc.  In  such  a 
case  the  estate  tail  in  remainder  would  be  locked  up,  until 
the  eldest  son  has  reached  his  majority.1 

§  50.  Merger  of  an  estate  tail. — It  is  a  general  rule, 
which  will  receive  constant  illustration  in  the  following 
pages,  that  where  a  less  and  a  greater  estate  unite  in  one 
person,  the  former  is  merged  and  lost  in  the  latter.  But 
this  is  not  always  the  case.  A  man  may  have  an  estate  tail 
and  the  reversion  in  fee  upon  failure  of  issue,  hut  the 
estate  tail  will  remain  intact,  and  cannot  be  barred  except 
in  the  mode  here  indicated.1 

§  51.  Estate-tail  after  possibility  of  issue  extinct. — 
When  the  legal  possibility  of  issue  lias  ceased,  it  leaves  to 
the  tenant  in  tail  a  lift'  estate  of  a  peculiar  character,  which  is 
denominated  an  estate  tail  afh  r  possibility  of  issue  extinct. 
He  is  not  liable  to  an  action  for  waste  by  the  reversioner, 
although  he  may  be  re-trained  by  an  equitable  injunction 
from  the  commission  of  wilful  and  malicious  waste.  It  is 
apparent  that  this  can  only  happen  in  the  case  of  an  estate 
tail  special.  If  the  limitation  be  to  the  heirs  of  one's  body 
generally,  there  is  a  legal  possibility  of  issue,  as  long  as  the 
tenant  is  living.3 

§    52.   Estates  tail  in  the  United  States.  —  In  the  early 

colonial  period,  estates  tail  prevailed  in  this  country  very 
generally,  and  they  could,  in  some  of  the  State-,  be  barred 
by  fines  and  recoveries.4     But  at  the  present  time  they  have 

1  Williams  on  Real  Prop.  50.  51  ;  1  Washb.  on  Real  Prop.  99. 
■  Wiscot's  Case,  2  Rep.  61  ;  Roe  •.  Baldwere,  5  T.  R.  110:  Poolo  ».  Morris, 
29  Ga.  374;  Altham's  Case,  8  Hop.  1">4  b;  Corbin  v.  Healy,  20  Pick.  515. 

3  1  Washb.  on  Real  Prop.  110,  111;  Williams  on  Real  Prop.  54.  55;  2 
Sharwood's  Rla.Com.  125 ;  Soe  v.  Audley,  1  Cox,  324  ;  List  v.  Rodney,  2  Norris. 
483;  Co.  Lit  27b,  28  a. 

4  Hawley  v.  Northampton,  8  Mass.  34;  Perry  r.  Kline,  IS  Cnsh.  120; 
Corbin  v.  Beater,  20  Pick.  615;  Jewell  ».  Warner,  85  N.  H.  170;  Dennett  r. 
Dennett,  40 N.  EL  600;  Jackson  v.  Van  Zandt,  12  Johns.  149:  MLcQregor  r. 
Comstock,  17  N.  Y.  162;  Lvlo  v.  Richards.  9  S.  ov  R.  880;   Di  D  r.  Schcnck,  10 

34 


€H.    IV.]  ESTATES    TAIL.  §    52 

been  abolished  in  most  of  the  States.  In  some  they  are 
changed  into  fees  simple,  while  in  others  they  are  divided 
into  a  life  estate  and  remainder  to  issue,  or  easy  modes  of 
converting  them  imo  fees  simple  are  provided.1 

N.J.  L.  39;  Partridge  v.  Dorscy.  3  Har.  &  J.  302;  Croxhall  v.  Sherard,  5 
Wall.  283;  Dewitt  v.  Eldred,  4  Watts  &  S.  421;  4  Kent's  Com.  14;  Walker 
Am.  Law,  299;  1  Washb.  on  Real  Prop.  111. 

1  In  Alabama,  California,  Connecticut,  Florida,  Georgia,  Kentucky,  Mary- 
land, Michigan,  Minnesota,  Mississippi,  North  Carolina,  Tennessee,  Texas, 
Wisconsin,  Virginia,  and  West  Virginia,  estates  tail  are  converted  into  fees 
simple.  In  Arkansas,  Illinois,  Kansas,  Missouri,  New  Jersey,  and  Vermont, 
the  tenant  in  tail  tak"s  a  life  estate  and  the  heirs  of  his  budy  the  remainder  in 
fee  per  formam  doni.  In  Indiana  and  New  York,  the  tenant  takes  a  fee 
simple,  if  there  is  no  limitation  in  remainder,  after  the  estate  tail,  and  a  life 
,siate,  when  there  is  such  a  limitation.  And  while  in  Delaware,  Maine,  Mas- 
sachusetts, Pennsylvania  and  Rhode  Island,  estates  tail  are  not  expressly 
abolished,  and  presumably  if  not  aliened  they  would  descend  to  the  special 
heirs,  and  revert  to  the  grantor  upon  failure  of  6uch  heirs,  it  is  now  provided 
by  statute  in  those  State9  that  a  conveyance  in  common  form  will  pass  a  fee 
simple  estate,  and  bar  the  entail.  1  Washb.  on  Real  Prop.  112,  note ;  Williams 
on  Real  Prop.  35,  Rawle's  note.  In  South  Carolina,  the  statute  de  donis  has 
never  been  recognized  as  a  part  of  the  common  law,  and  fees  conditional  still 
exist  there.    3  S.  C.  Stats,  at  Large  341. 

35 


CHAPTER  Y. 

.  ESTATES  FOR  LIFE. 

Section  60.  Definition  and  classes  of  life  estates. 

61.  Peculiarities  of  an  e^tute  per  auttr  vie. 

62.  Words  of  limitation  in  estates  for  life. 

63.  The  merger  of  life  e^tnte  in  a  greater. 

64.  Alienation  by  tenant  fur  life. 

65.  Tenure  bel  t  fur  life  and  reversioner. 

66.  Apportionment  between  life  tenant  and  reversioner  of  incum- 

brai 

67.  Same — Of  rent. 

68.  Claim  for  improvements. 

69.  Estovers. 

70.  Emblements,  what  they  are. 

71.  S  urn'  —  Who  may  claim  them. 

72.  Definition  and  history  of  waste. 

73.  What  acts  constitute  waste. 

74.  Waste  in  respect  to  tn 

75.  Continued  —  In  respect  to  minerals  and  other  deposits. 

76.  Continued  —  Management  and  culture  of  land. 

77.  Continued  —  In  respect  to  buildings. 

78.  Continued  —  Act*  of  strangers. 

79.  Continued  —  Destruction  of  buildings  by  fire. 

80.  Exemption  from  liability. 

81.  Remedies  for  waste. 

82.  Property  in  timber  unlawfully  rut. 

§   GO.  Definition    and    classes    of    life    estates.  —  An 

estate  for  life  is  strictly  one  whose  duration  is  limited  by 
the  life  or  lives  of  certain  persons  ;  it  may  be  the  life  of 
the  tenant,  the  life  of  another,  or  the  joint  lives  of  the 
tenant  and  others.  But  the  term  has  been  generally 
extended  so  as  to  include  all  freeholds  not  of  inheritance. 
It  will,  therefore,  embrace  an  estate  for  an  uncertain 
period,  which  may  continue  during  a  life  or  lives.  Such 
would  be  a  grant  to  a  woman  during  widowhood.  Tf  she 
marries,  her  estate  would  terminate  ;  but  it  may  endure  as 
36 


CH.  V.]  ESTATES    FOR   LIFE.  §    61 

long  as  she  lives.1  And  it  is  of  no  consequence  how  uncer- 
tain the  duration  of  the  estate  may  be,  or  how  likely  it  will 
terminate  in  a  given  number  of  years  ;  if  it  can,  and  may, 
continue  during  a  life,  it  is  considered  a  freehold  estate  for 
life.  Such  is  a  grant  to  one,  until  he  can,  out  of  the  rents 
and  profits,  pay  the  debts  of  the  grantor.  But  if  the  con- 
veyance be  a  devise  to  executors,  until  the  devisor's  debts 
are  paid,  they  would  take  only  a  chattel  interest.2  An 
estate  for  one's  own  life  is  considered  by  the  law  to  be  the 
highest  and  best  estate  for  life  that  one  can  have.  Conse- 
quently the  courts,  in  construing  a  doubtful  grant  for  life, 
would  hold  't  to  be  for  the  life  of  the  tenant,  rather  than 
for  the  life  of  the  grantor.3  An  estate  for  the  life  of  an- 
other is  called  in  the  Norman-French,  an  estate  per  auter 
vie,  and  the  one  whose  life  limits  its  duration  is  called  the 
cestui  que  vie.*  In  the  present  chapter  we  shall  speak  only 
of  estates  for  life  in  general  and  of  those  incidents  which 
pertain  to  the  estates  for  life,  which  are  created  by  the  act 
of  the  parties,  or  in  other  words,  of  conventional  life 
estates.  There  are  other  classes  of  life  estates,  which  come 
into  being  by  operation  of  law,  as  in  the  case  of  dower  and 
curtesy;  these  will  be  treated  in  a  separate  chapter.5 

§    61.  Peculiarities  of    an  estate  per    auter  vie. — An 

estate  for  the  life  of  another,  as,  for  example,  an  estate 
for  the  life  of  the  grantor,  is  a  freehold,  but  is  not  an 
estate  of  inheritance.  Perhaps  during  the  earlier  existence 
of  the  feudal  system,  it  was  not  considered  as  strictly  a 
freehold  interest;  but  it  is  now,  and  has^long^been,  in- 
cluded in  that  class^of  estates.     The  estate  terminates  with 

1  Co.  Lit.  42  a;  Hurcl  v.  Cushing,  7  Pick.  179;  Jackson  v.  Myers,  3  Johns. 
388;  Koseboom  v,  VanVechten,  5  Denio,  414;  Hatfield  v.  Sneden,  54  N.  Y. 
285;  Clark  v.  Owens,  18  N.  Y.  434;  Hewlins  v.  Shippam,  5  B.  &  C.  221;  2 
Bla.  Com.  121 

2  Co.  Lit.  42  a;  1  Washb.  on  Real  Prop.  116. 

3  Co.  Lit.  42  a;  2  Bla.  Com.  121 ;  1  Washb.  on  Real  Prop.  115. 
*  Co.  Lit.  41  b;  2  Bla.  Com.  120. 

1  See  post,  ch.  VI.,  sects.  90, 164. 

37 


§    61  ESTATE8    FOR   LIFE.  [PART    I. 

the  death  of  the  cestui  que  vie,  and  does  not  expire  with 
the  death  of  the  tenant.  If,  therefore,  the  tenant  dies  dur- 
ing the  life  of  the  cestui  que  '-if,  the  estate  continues  and 
must  vest  in  some  one.  If  he  has  conveyed  it  away,  his 
grantee  will  hold  it,  unaffected  by  his  death.  But  if  he 
dies  in  possession,  a  question  of  some  difficulty  arises.  At 
common  law,  it  could  not  descend  to  bis  heirs,  for  the  law 
of  descent  applies  only  to  estates  of  inheritance  ;  and  this 
is  not  such  an  estate.  It  could  uot  descend  to  the  executor 
or  administrator,  for  they  could  take  only  chattel  interests, 
and  this  was  a  freehold.  It  was  al-'>  uol  devisable,  for  it 
was  a  freehold  interest.  At  common  law  it  was  permitted 
for  any  one  who  firsl  took  possession  to  bold  it,  and  he 
was  called  the  general  occupant  J  This  right  of  general 
occupancy  could  only  he  exercised  where  there  were  no  per- 
sons designated  in  the  grant  who  could  take  as  spt 
occupants,  [f  the  grant  \\:i-  t<>  A.  and  his  heirs  during  the 
life  of  B.,  the  heirs  would  take  as  special  occupants,  to  the 
exclusion  of  the  genera]  occupant.9  But  these  special 
occupants  had  not  the  interest  of  purchasers  during  the  life 
of  the  tenant.  They  only  took  what  was  left  undisposed 
of,  and  could  not  prevent  its  alienation  by  the  tenant.  On 
the  other  hand,  the  tenant  could  not  liar  them  by  a  devi-e 
of  the  estate.8  This  peculiarity  of  the  common  law  has 
since  been  done  away  with  by  statute  in  England,  and 
in  almost  every  State  in  this  country.  In  some,  estates  per 
auler  vie  are  made   to  descend   to   heirs    in    common  with 


i  Co.  Lit.  41  b;  2  Bin.  Com.  259. 

*  2  Bla.  Com.  259,  260;  Atkinson  v.  Baker.  4  T.  R.  229.  A  tenant 
at  will  of  the  tenant  per  aider  vie,  in  possession  at  the  death  of  the  hitter, 
will,  «9  against  the  general  occupant,  have  :i  superior  claim  as  one  spec,.  - 
special  occupant,  though  he  would  have  to  yield  possession  to  the  special  oc- 
cupant, who  was  also  heir  of  the  tenant.  Co.  Lit. 41  b,  m  ;>■  232,  And  in  like 
manner,  the  executor  or  admi  listrator  might  have  taken  the  estate  as  special 
occupant,  if  the  grant  hud  b  en  to  the  tenant  and  his  executors  and  admin- 
istrators, instead  oft  i  him  an  I  li:g  S         ithorities,  a 

s  Doe  v.  Robinson.  8  B.  &  C.  i  13;  D  >e  v.  L  ixton,  6  T.  ien  ». 

Allen,  2  Dru.  <fc  War.  807;   1  Wushb.  o  i  Real  Prop.  121. 

38 


•CH.  V.]  ESTATES    FOR   LIFE.  §    63 

other  real  estate;  while  in  others  it  is  treated  as  a  chattel 
interest,  and  constitutes  assets  in  the  hands  of  the  personal 
representatives.1 

§  62.  Words  of  limitation  in  estates  for  life. — There 
are  no  words  of  limitation  required  at  common  law.  A 
grant  of  an  estate  was  construed  to  be  for  the  life  of  the 
grantee,  where  there  was  no  express  limitation.2  But  in 
those  States  where  now  by  statute  all  grants  and  devises 
are  made  to  convey  a  fee  simple  estate,  unless  a  less  estate 
is  expressly  limited,  it  would  be  necessary  to  limit  the 
estate  for  the  life  of  the  grantee  in  express  words.3  And 
in  devises,  a  life  estate  is  often  raised  by  implication. 
Thus  where  A.  devised  his  lands  to  his  heirs  after  the  death 
of  B.,  it  was  held  that  B.  took  an  estate  for  life  by  neces- 
sary implication,  since  no  one  could  take  the  estate  except 
the  heir,  and  he  was  postponed  by  the  will  until  B.'s  death. 
But  if  the  devise  had  been  to  a  stranger  after  the  death  of 
B.,  the  heirs  would  have  taken  by  descent  during  the  life  of 
B.,  instead  of  the  latter.4 

§   63.   The  merger  of  life  estate  in  a  greater. — If   a 

life  estate  is  conveyed  to  one  having  a  reversion  or  any 
other  greater  estate,  or  the  tenant  acquires  the  reversion, 
the  life  estate  is  merged  in  the  latter.6  So  would  an  estate 
for  the  life  of  another  merge  in  an  estate  for  one's  own 

1  In  Missouri,  Arkansas,  Rhode  Island,  North  Carolina,  Massachusetts, 
and  some  others,  it  is  real  estate;  while  in  New  York,  New  Jersey,  Pennsyl- 
vania, Indiana,  Kentucky,  Minnesota,  Maryland,  Michigan,  Wisconsin,  Texas- 
it  is  personal  property.  In  all  the  States  it  can  now  be  disposed  of  by  will.  In 
Maryland,  the  right  of  special  occupancy  is  still  recognized,  so  that  if  the 
estate  per  auler  vie  is  expressly  limited  to  the  heirs,  the  heirs  will  take  as 
special  occupants.  In  the  other  States,  the  limitation  does  not  give  them  a 
superior  title,  if  the  statute  makes  the  estate  personal  property.  See  1 
Washb.  on  Real  Prop.  121 ;  Williams  on  Real  Prop.  21,  Rawle's  note. 

2  Co.  Lit.  42  a;  5  Bla.  Com.  121. 
s  See  ante,  sect.  37. 

4  1  Washb.  on  Real  Prop.  116,  117, 

5  2  Bla.  Com.  177 ;  Co.  Lit.  41  b. 

39 


§    64  ESTATES    FOR   LIFE.  [PART    I. 

life.1  But  if  the  tenant  for  life  conveys  to  the  reversioner 
an  estate  for  the  life  of  the  latter,  a  possible  reversionary 
interest  being  left  in  the  tenant,  there  will  be  no  merger, 
and  the  tenant  would  take  the  estate  again,  if  the  rever- 
sioner should  die  during  his  lifetime.2 

§  64.  Alienation  by  tenant  for  life.  —  Unless  there  is 
a  condition  in  restraint  of  alienation,  the  tenant  for  life 
may  convey  his  estate  as  freely  as  the  tenant  in  fee.  He 
may  alien  his  entire  interest,  which  would  become,  in  his 
grantee,  an  estate  ppr  auter  vie.  Or  lie  may  grant  any 
-mailer  estate,  and  may  carve  up  his  estate  into  any  number 
of  smaller  estates,  as  long  as  they  «lo  not  together  exceed 
his  life  estate.3  If  the  life  tenanl  attempted  to  convey,  by 
a  common-law  feoffment,  a  greater  estate  than  he  had,  it 
worked  a  forfeiture  of  his  estate;  hi-  grantee  received 
nothing,  and  the  estate  in  remainder  or  in  reversion  vested 
in  possession.  This  rule  follows  as  a  consequence  from 
the  feudal  notion  that  the  wrongful  feoffment  of  the  life 
tenant  was  a  renunciation  of  the  feudal  tenure  between  him 
and  the  lord,  an  act  of  disseisin,  which  dive-ted  the 
remainder-man  or  reversioner,  of  his  seisin  by  its  livery  to 
the  grantee.4  And  this  rule  applies  to  this  day,  \\ '.  srever 
it  has  not  been  changed  by  statute.  But  if  he  attempts  the 
conveyance  of  a  greater  estate  by  any  other  mode  of  con- 
veyance, such  as  a  grant,  lease,  and  release,  or  bargain  and 
sale,  which  operate  under  special  statutes  or  under  the 
Statutes  of  Uses,  it  will  only  have  the  effect  of  conveying 
what  interest  he  has,  and  no  forfeiture    results  therefrom.5 

1  1  Washb.  on  Real  Prop.  117;  1  Spence  Eq.  Jur.  144;  Williams  on  Real 
Prop.  22. 

'  1  Washb.  on  Real  Prop.  117,  118;  Co.  Lit.  42,  21S  b. 

1  1  Cruise  Dig.  103;  Stewart  v.  Clark,  13  M.-te.  79 ;  Jackson  r.  Van 
Hoesen,  4  Cow.  325;    Williams  on  Real  Prop   2>-'. 

*  2  Bla.  Com.  274,  275;  1  Cruise  Dig.  103;  1  Washb.  on  Real  Prop.  U<. 
119;  Jackson  v.  Mancius,  ^  Wend.  865;  Stump  o.  Fi.idiay.  2  Rawle, 
Matthews  e.  Ward's   Lcss.v,  10  (Jill  A:. I.  It1:   Red  fern  r.  Middleton,  1  Rice, 
469 ;  Faber  v.  Police,  10  S.  C.  370.     See  post,  sects.  422,  770. 

5  1  Washb.  on  Real  Prop.  119.     See  post,  sect  422. 

40 


CH.  V.]  ESTATES    FOR   LIKE.  §    65 

These  deeds  do  not  operate  by  transmutation  of  possession, 
and  therefore  do  not  divest  the  tenant  in  remainder  or 
reversion  of  his  seisin.  The  nature  and  effect  of  these 
various  deeds  will  be  more  particularly  considered  in  subse- 
quent pages. ' 

§  65.  Tenure  between  tenant  for  life  and  rever- 
sioner.—  The  relation  of  tenure  so  far  exists  between  the 
life  tenant  and  his  reversioner,  as  that  the  possession  of  the 
former  is  never  deemed  to  be  adverse  to  the  latter.  That 
is,  during  the  existence  of  the  life  estate  he  cannot  disseise 
his  reversioner  by  any  adverse  claim  of  title.  Nor  will  the 
disseisin  of  the  life  tenant  by  a  stranger  affect  the  rights 
of  the  reversioner  during  the  life  of  the  former.  He  may 
recover  possession  of  the  disseisor  at  any  time  after  the 
death  of  the  life  tenant  within  the  statutory  period  of  limi- 
tation. The  statute  only  runs  from  the  death  of  the  tenant.2 
And  where  the  life  tenant  has  granted  the  fee,  his  grantee 
becomes  a  trespasser  from  his  death,  and  may  be  ousted  by 
the  reversioner,  it  matters  not  how  long  he  may  have  been 
in  possession  during  the  life  of  the  tenant  for  life.3  But 
the  common-law  real  actions,  when  brought  against  the  life 
tenant  for  recovery  of  the  land  under  a  claim  of  title 
adverse  to  both  reversioner  and  life  tenant,  barred  the  claims 
of  the  reversioner  as  well  as  the  life  tenant,  even  though 
the  former  was  not  made  a  party  to  the  suit.  These  real 
actions  could  only  be  brought  against  the  tenant  in  pos- 
session, who  was  called  the  tenant  of  the  praecipe.  The 
life  tenant  was,  therefore,  under  obligation  to  the  reversioner 
to  defend  the  title  in  such  actions  ;  but  he  could  relieve  him- 

1  See  post,  sects.  774,  779. 

2  Varney  v.  Stephens,  22  Me.  334 ;  Austin  v.  Stevens,  24  Me.  526 ;  Foster 
v.  Marshall,  22  N.  H.  491;  Jackson  v.  Schoonmaker,  4  Johns.  390;  Jackson 
v.  Mancius,  2  Wend.  357 ;  Grout  v.  Townshend,  2  Hill,  554 ;  McCorry  v. 
King's  heirs,  3  Humph.  367;  Guion  v.  Anderson,  8  lb.  325;  Archer  v.  Jonesr 
26  Miss.  583. 

8  Williams  v.  Caston  1  Strohh.  130.    See  Moore  v.  Luce,  29  Pa.  St.  263. 

41 


§    66  ESTATES    FOR    LIFE.  [PART    I. 

self  of  the  duty  by  calling  in  the  reversioner  to  assist  in  the 
defence.  This  was  called  "  praying  in  aid."  He  could, 
however,  defend  without  calling  in  such  assistance,  and  the 
judgment  would  be  equally  conclusive  against  the  rever- 
sioner.1 These  actions  have  now  been  abolished  in  England 
and  in  this  country,  and  since  the  principle  did  not  prevail 
in  any  other  forms  of  action-,  a  judgment  for  recovery  of 
land  only  affects  the  parties  to  the  suit.9 

§  Gfi.  Apportionment,  between  life  tenant  and  rever- 
sioner of  incumbrances.  —  The  life  tenant  is  bound  to 
pay  all  the  accruing  interesl  on  existing  incumbrances  upon 

the  estate  ;  but  he  is  not  compelled,  as  nirain-t  the  rever- 
sioner, to  pay  off  the  principal  of  the  debt.  The  payment 
of  the  principal  falls  upon  the  reversioner.'  If  the  life 
tenant  pays  off  the  entire  deb^,  he  becomes  a  creditor  of 
the  reversioner  for  the  -hare  of  the  latter,  and  vice  versa. 
The  payment  is,  in  such  a  case,  apportioned  between  them. 
The  tenant  would  have  to  pay  such  a  sum.,  as  would  equal  the 

present    value  of  the   amount  of  interest  he  would  probably 

have  paid  during  his  life,  if  the  mortgage  had  continued  so 
long  in  existence,  estimating  bis  probable  length  of  life  by 
the  ordinary  tables  of  mortality.  The  balance,  after  deduct- 
ing this  sum,  would  be  the  amount  due  from  the  rever- 
sioner.*     Formerly  it  was  arbitrarily  apportioned  between 

1  1  Prest.  Est.  207,  208;  1  Washb.  on  Real  Prop.  73.  74,  122. 

2  t  Spence  Eq.  Jur.  225;  1  Washb.  on  Real  Prop.  122.  121. 

s  1  Story  Eq.,  sect.  48(3;  4  Kent's  Com.  76;  Kensington  v.  Bouverie,  31 
Eng.  Law  &  Eq.  345;  Mosely  v.  Marshall,  25  Barb.  42;  Doane  i\  Doane,  46 
Vt.  4'.ii>:  Warley  v.  Warley,  1  Bailey  Eq.  3'.17.  But  this  is  not  a  personal 
claim  against  the  life  tenant,  which  the  incumbrancer  can  enforce.  He  is 
only  obliged  to  pay  the  interest,  if  he  desires  to  save  the  estate  from  for- 
feiture. Morley  r.  Sanders,  L.  R.  8  Eq.  594:  Kensington  v.  Bouverie,  supra; 
Doane  v. Doane,  supra;  Plympton  d,  Boston  Dispone.,  10>>  Mass.  544.  It  is 
different  in  respect  to  the  liability  of  the  tenant  for  life  for  accruing  I 
These  he  is  obliged  to  pay ;  if  he  does  not,  and  purchases  the  tax-title  gives 
for  default  of  taxes,  he  cannot  set  it  up  in  opposition  to  the  reversioner. 
Cairns  v.  Chabert,  3  Edw.  Ch.  812;  Fleet  r.  norland.  11  Bow.  Pr. 
Patrick  v.  Sherwood,  4  Blatchf.  112. 

4  Saville  o.  Saville,  2   Atk.  403;    Eastabrook  n.   Bapgood,  10  Mass.  315, 
42 


<CH.  V.]  ESTATES    FOR    LIFE.  §    07 

them,  the  tenant  paying  one-third,  and  the  reversioner  two- 
thirds.  But  this  rule  has  now  generally  been  superseded 
by  the  rule  of  apportionment,  just  explained.1 

§  (!7.  Same  —  Of  Rent.  —  It  was  the  common-law  rule 
that,  if  a  tenant  for  years  was  ousted  by  one  holding  a  better 
title  before  the  expiration  of  bis  lease,  or  between  the  days 
of  payment  of  his  rent,  he  was  not  liable  for  any  rent,  since 
the  rent  could  not  be  apportioned  to  the  time  during  which 
he  enjoyed  the  possession  under  the  lease.  So,  if  a  tenant 
for  life  grants  a  lease  for  years,  the  rent  to  be  paid  on  a 
fixed  day,  and  he  dies  before  the  rent  become-  due.  his  per- 
sonal representative  would  have  no  right  of  action  for  rent 
accruing  between  the  last  pay-day  and  the  day  of  his  death.2 
And  if  the  lease  was  given  by  virtue  of,  and  under,  a  power 

note;  Foster  v.  Hilliard,  1  Story,  87;  Newton  v.  Cook,  4  Gray,  46; 
Gibson  v.  Crehore,  6  Pick.  146;  Bell  v.  Mayor  of  New  York,  10  Paige  Ch. 
71;  House  v.  House,  lb.  158;  Swain  v.  Perine,  5  Johns.  Ch.  482;  Cogswell  v. 
Cogswell,  2  Edw.  Ch.  231;  Dorsey  v.  Smith,  7  Har.  &  J.  367;  Snyder  v. 
Snyder,  6  Mich.  470;  Abercrombie  d.  Kiddle,  3  Md.  Ch.  324.  The  tables 
usually  employed  are  Wiggleworth's  and  the  Carlisle  tables,  the  latter  being 
considered  the  more  accurate.  When  it  is  stated  in  the  text,  that  the  rever- 
sioner is  obliged  to  pay  the  balance  remaining,  after  deducting  the  sum  to  be 
liquidated  by  the  tenant  for  life,  it  is  not  meant  that  he  is  under  a  personal 
obligation  to  pay  it.  He  may  refuse,  and  allow  the  tenant  for  life  to  enforce 
the  incumbrance  against  him.  See  post,  sect.  192.  The  tenure  existing 
between  them  only  prevents  the  tenant  from  holding  the  incumbrance,  so 
acquired,  adversely  to  the  reversioner,  if  he  should  desire  to  obtain  the  benefit 
of  the  purchase  by  contributing  his  share  towards  the  expenses.  Foster  vm 
Hilliard,  1  Story,  77;  Davies  v.  Myers,  13  B.  Mon.  511. 

1  1  Story  Eq.  487.  See  Jones  v.  Sherrard,  2  Dev.  &  B.  Ch.  179.  But  it  is 
still  the  rule  of  law  in  South  Carolina,  that  the  tenant  is  to  pay  one-third,  and 
the  reversioner  two-thirds.  Wright  v.  Jennings,  1  Bailey,  277.  In  Garland 
v.  Crow,  2  Bailey,  24,  the  court  say:  "In  contemplation  of  law,  an  estate  for 
life  is  equal  to  seven  years'  purchase  of  the  fee.  To  estimate  the  present 
value  of  an  estate  for  life,  interest  must  be  computed  on  the  value  of  the  whole 
property  for  seven  years;  and,  perhaps,  interest  on  the  several  sums  of  annual 
interest  from  the  present  time  to  the  periods  at  which  they  respectively  fall 
due,  ought  to  be  abated."  Following  this  rule,  and  calculating  the  interest 
at  seven  per  cent,  it  would  be  a  little  more  than  thirty-five  per  cent  of  the 
value  of  the  estate.     See  post,  sect.  146. 

2  2  Bla.  Com.  124;  1  Washb.  on  Real  Prop.  126;  Fitchburg  Cotton  Co.  v. 
Melvin,  15  Miss.  268;  Perry  v.  Aldrich,  13  N.  H.  343.     See  post,  sect.  192. 

43 


§    68  ESTATES    FOR    LIFE.  [PAKT    I. 

so  that  it  did  not  terminate  with  the  death  of  the  life  tenant, 
the  entire  rent  would  be  payable  to  the  reversioner,  and  the 
personal  representatives  of  the  life  tenant  would  get 
nothing.  This  rule  was  so  strictly  enforced  that  in  one 
case  the  rent  lacked  one  hour  of  falling  due  when  the  life- 
tenant  died,  and  the  reversioner  took  the  rent.1  But  this 
injustice  of  the  common  law  has  now  been  remedied  by 
statutory  change.-,  ><»  thai  now  generally,  the  rent  is  appor- 
tioned between  the  life  tenant  and  reversioner,  giving 
each  his  pro  rata  share  according  to  the  time  of  enjoyment 
of  the  lease  before,  and  after,  the  tenant'-  death.  And  the 
personal  representatives  of  the  life  tenant  may  sue  the 
tenant  for  years  for  the  rent  which  may  be  apportioned  to 
him.2 

§  68.  Claim  for  Improvements.  —  The  tenant  for  life 
has  no  claim  for  any  improvements  which  he  may  have  made 
upon  the  premises.  He  is  bound  to  keep  the  premises  in 
repair,  but  is  under  no  legal  obligation  to  undertake  any 
improvements.  If  he  does,  it  i-  a  voluntary  act  of  his 
own,  which  gives  rise  to  no  claim  against  the  reversion  for 
the  payment  of  his  share  of  the  expenses.  On  the  other 
hand,  the  tenant  for  life  is  obliged  to  pay  all  the  t.\ 
which  may  be  assessed  upon  the  land  ;  and,  if  he  fails  to  do 


1  Strafford  v.  Wentworth,  1  P.  Wras.  180;  Rockingham  9.  Penrice.  lb 
178;  1  Washb.  on  Real  Prop.  127  ;  post,  sect.  192.  In  England  by  the  Settled 
Estates  Act,  1877,  every  tenant  t*>r  life,  unless  expressly  declared  to  the 
contrary  in  the  deed  to  him,  may  demise  the  premises  tor  twenty-one  \< 
which  shall  not  determine  at  the  death  of  the  tenant,  provided  the  lease  take- 
effect  in  possession  within  one  year  after  its  execution,  and  the  rent  reserved 
is  made  an  incident  of  the  reversion.  Williams  on  Real  Prop.  (6th  ed.)  2u\  27. 
Rutin  the  United  States,  as  a  general  rule,  tl  ere  are  no  such  statutes,  and  an 
express  power  to  make  leases  is  necessary,  in  order  to  have  the  term  continue 
after  the  expiration  of  the  life  estate. 

Williams  on    Real    Prop.   27;    1     Washb.    on    Real    Prop.    127;    Price   v- 
Pickett.  21   Ala.  741  ;  8  Kent's  Com.  469,  470. 

:1  1  Washb.  on  Real  Prop.  128;  Parsons  9.  Winslow,  16  Mass.  301;  Sohier 
v.  Eldridge,  103  Mass.  351 ;  Corbet  v.  Laurens,  5  Rich.  Eq.  301. 

44 


■CH.  V.]  E8TATES    FOR   LIFE.  §    69 

so,  a  receiver  maybe  appointed  to  take  charge  of  the  estate, 
and  pay  the  taxes  out  of  accruing  rents  and  profits.1 

§  69.  Estovers.  —  This  word  signifies  the  timber  that  a 
tenant  is  allowed  to  cut  upon  the  land  for  use  upon  the  prem- 
ises, and  for  keeping  them  in  repair.  They  were  divided  by 
the  common  law  into  three  kinds,  viz.  :  house-bote,  plough- 
bote,  and  hay-boie.  House-bote  included  the  wood  necessary 
for  the  repair  of  the  buildings  and  for  the  purpose  of  fuel. 
Plough-bote  covered  such  as  was  needed  for  the  manufac- 
ture  or  repair  of  all  instruments  of  husbandry  ;  while  hay- 
bote  was  what  was  used  in  the  erection  and  maintenance  of 
fences  and  hedges.  The  tenant,  whether  he  is  one  for  life, 
or  for  years,  has  this  right  as  a  compensation  for  the  duty 
of  keeping  the  premises  in  repair  and  so  does  his  assignee.2 
But  the  right  is  limited  to  only  what  is  reasonably  necessary 
for  present  use.  If  the  tenant  exceeds  this  amount,  and 
cuts  timber,  for  the  purpose  of  sale,  or  even  cuts  a  reason- 
able amount  of  wood,  which  is  not  suitable  for  estover,  and 
exchanges  it  for  what  is,  he  is  deemed  guilty  of  waste,  and 
is  liable  to  the  reversioner  for  damages.3  Nor  can  he  use 
them  on  any  other  place  but  the  one  from  which  they  are 
taken.  Thus  a  widow,  who  had  two  places  set  out  to  her 
as  dower  out  of  two  separate  estates,  she  was  not  allowed 
to  cut  wood  on  one  place  for  use  on  the  other,  even  though 
the  latter  has  no  woodland.  But  if  she  obtained  both 
parcels  of  land  from  the  same  estate,  it  would  not  be  waste 

1  Varney  v.  Stevens,  22  Me.  331;  Cairns  v.  Chabert,  3  Edw.  Ch.  312; 
Prettyman  v.  Walston,  34  111.  192. 

2  1  Washb.  on  Real  Prop.  128,  129;  Co.  Lit.  416;  2  Bla.  Com.  35. 

3  1  Washb.  on  Real  Prop.  129;  2  Bla.  Com.  122;  Webster  v.  Webster,  33 
N.  H.  21 ;  Smith  v.  Jewett,  40  N.  H.  532 ;  Johnson  v.  Johnson,  18  N.  H.  597 ; 
Hubbard  v.  Shaw,  12  Allen,  122;  Simmons  v.  Norton,  7  Bing.  640;  Richard- 
son v.  York,  14  Me.  221;  White  v.  Cutler,  17  Pick.  248;  Padelford  v.  Padel- 
ford.  T  Pick.  152 ;  Sarles  v.  Sarles,  3  Sandf.  Ch.  601 ;  Livingston  v.  Reynolds, 
2  Hill,  157;  Gardiner  v.  Dering,  1  Paige  Ch.  573;  Roberts  v.  Whiting,  16 
Mass.  186;  Doe  v.  Wilson,  11  East,  56. 

45 


§    "0  ESTATES    FOB    LIFE.  [PART   I. 

for  her  to  use  wood  on  one,  which  was  cut  on  the  other.1 
In  England  the  rule  in  regard  to  the  right  of  estovers  is 
much  stricter  than  it  i.s  in  this  country,  on  account  of  the 
difference  in  the  economic  necessities  of  the  two  countries. 
In  this  country  woodland  is  very  abundant,  and  what  would 
be  waste  in  England,  would  not  necessarily  be  bo  her<  . 
The  rule  as  applied  in  this  country  is  that  the  life  truant 
may  cut  as  much  timber  as  he  may  need  for  use  upon  the 
premises,  provided  it  does  not  materially  injure  the  value  of 
the  reversion.  Nothing  but  actual  injury  would  be  con- 
sidered waste,  and  there  can  be  n<>  general  rules  laid  down 
in  detail  which  would  be  applicable  to  each  case  which  may 
arise.  The  determination  of  the  question  depends  upon 
the  circumstances  of  each  case.1 

§  To.  Emblements  —  What  they  are.  —  Emblements  are 
the  profits  which  the  tenant  of  an  estate  is  entitled  to 
receive  out  of  the  crops  which  he  bas  planted,  and  which 
have   not   been   harvested,    when    his    estate    terminates. 

Under  the  term  emblements  are  only  included,  as  a  rule, 
such  product-  of  the  soil  as  are  of  annual  growth  and  cul- 
tivation. Such  would  be  the  different  cereals  and  vegetables, 
wheat,  corn,  beans,  hay,  flax,  potatoes,  melons,  etc.  Hops 
are  also  included,  although  they  are  not  planted  annually.8 
But  they  do  not  include  tin"  grasses,  which  are  only  planted 
perennially,  nor  the  fruit  of  trees,  because  in  these  ca- 
the  tenant  cannot  expect  to  reap  such  a  benefit  in  one  year, 
and  he  is  aware  of  that  fact    when    he    plants   them.4     This 

1  Cook  v.  Cook,  11  Gray,  123;  Padelford  v.  Padelford.7  Pick.  162;  Phillips 
?•.  Allen,  7  Allen,  117;  Dalton  v.  Pulton,  7  Ire<l.  Eq.  197;  Owen  v.  Hyde,  6 
Yerg.  834;  Webster  --.  Webster,  83  N.  H.  28. 

-  Padelford  r.  Padelford,  7  Pick.  152;  Pynchon  v.  Stearns,  11  Mete.  804; 
Webster  v.   Webster,  88  N.    II.  26;    Jackson   a.    Brownson,   7  Johns.  227; 
Morehouse  i>.  Cotheal,  2  N.  J.  L  -VJ1  ;  McCullough  i>.  Irvine.  13  Pa.  St.  I 
Crockett  i>.  Crockett,  '2  Ohio  St.  180. 

3  Co.  Lit.  55  a.  b.  note  864:  2  Bin.  Com.  122;  Stewart  0.  Doughty,  9 
Johns.  108;  1  Washb.  on  Real  Prop.  182,  183. 

1  1  Washb.  on  Real  Prop.  183:  Reiff».  Reiff,  04  Pa.  St,  134;  '2  Bla.  Com. 
128;  Evans  0.  Englehart,  B  Gill  .V-  J.  188. 

:-; 


CH.  V.]  ESTATES    FOR    LIFE.  §    70 

does  not,  of  course,  refer  to  the  right  which  nurserymen 
have  to  trees  and  shrubs,  which  they  plant  for  the  purpose 
of  sale.     As  has  been  shown,  in  such  cases   the  plants  are 

fixtures,  which  he  is  entitled  to  remove,  tree  and  plant,  ;i- 
well  as  the  fruit  thereof.1  And  to  entitle  one  to  the  crop-. 
they  must  be  planted  by  him.  If  the  crop  has  been  planted 
by  another,  the  tenant  will  not  be  entitled  to  fcljem,  however 
much  care  he  may  have  bestowed  upon  them.2  As  an 
incident  to  the  right  of  emblements,  the  tenant  or  his 
representatives  have  a  right  of  entry  upon  the  land,  aftei 
the  termination  of  the  tenancy,  for  the  purpose  of  attend- 
ing to  the  crop  while  growing,  and  for  harvesting  it  when 
ripe.  The  right  of  ingress  and  egress,  however,  is  limited  to 
what  is  necessary  for  these  purposes.3  But  it  has  been 
asserted  and  claimed  by  some  authorities,  that  the  tenant 
would  be  liable  for  rent  for  such  occupation  of  the  land.4 
It  does  not,  however,  seem  to  be  the  general  custom  to  pay 
it  or  demand  it.  The  common  law  as  to  what  constitute 
emblements,  and  the  extent  of  the  right,  has  been  very 
accurately  and  definitely  settled.  But  it  will  be  found  that 
local  usages  and  customs  will  cause  the  local  law  to  vary 
somewhat  from  the  common  law.  Still  the  more  important 
principles  are  found  to  be  uniformly  applied  throughout 
the  country.6 

1  Taylor's  L.  &  T.  81 ;  1  Washb.  on  Real  Prop.  11,  133;  Penton  v.  Robart 
2  East,  88;  Miller  t>.  Baker,  1  Mete.  27;  Wbitmarsh  v.  Walker,  lb.  313: 
Wyndham  t>.  Way,  4  Taunt.  316. 

1  Grantham  v.  Hawley,  Hob.  132;  Stewart  v.  Doughty,  9  Johns.  108;  Gee 
v.  Young,  1  Havw.  17 ;  Thompson  v.  Thompson,  6  Munf.  514 ;  Price  v. 
Pickett,  21  Ala.  741. 

3  1  Washb.  on  Real  Prop.  136,  137-  Forsythe  v.  Price,  8  Watts,  282; 
Humphries  v.  Humphries,  3  Ired.  362. 

*  1  Washb.  on  Real  Prop.  137. 

6  1  Washb.  on  Real  Prop.  137.  In  several  of  the  States,  the  tenant  for 
years  under  special  circumstances  is  by  local  custom  allowed  emblements, 
although  generally,  as  will  be  explained  in  sect.  71,  tenants  for  years  have  no 
right  to  emblements.  See  Van  Doren  v.  Everitt,  5  N.  J.  L.  460;  Howell  v. 
Schenck,  24  N.  J.  L.  89;  Templeman  v.  Biddle,  1  Harr.  622;  Dorsey  v.  Eagle, 
7  Gill  &  J.  331 ;  Foster  v.  Robinson,  6  Ohio  St.  95. 

47 


§    71  ESTATES    FOR    LIFE.  [PART    I. 

§   71.   Same  —  Who  may  claim  them.  —  In  order  that  a 

tenant  may  claim  emblements,  he  must  show  that  his  estate 
was  one  of  uncertain  duration.  This  would,  of  course, 
include  the  representatives  of  all  tenants  for  life,  whether 
they  are  conventional  or  legal  life  estates,  and  because  they 
constitute  the  larger  class  of  those  who  are  entitled  to  them, 
the  subject  has  been  discussed  in  this  connection.1  Tenants 
at  will  also  have  tin-  right,8  but  not  tenant-  for  years  or  at 
sufferance.8  And  a-  an  outcome  of  the  law  of  emblements 
the  executor-  of  tin-  tenants  in  fee  are  entitled  to  the  crops 
if  they  are  ripe  for  harvest,  in  preference  t<>  the  heir-.4 
But  if  the  estate  is  terminated  through  the  fault  of  the 
tenant,  as  when  he  abandons  the  premises,  or  voluntarily 
destroys  his  estate,  by  failure  to  perform  a  condition,  or 
where  the  party  is  in  wrongful  possession,  without  color*  of 
title,  he  is  not  entitled  to  emblements.1  Thus,  a  widow  has 
no  claim  to  emblements,  where  -he  terminates  her  tenancy 
during  widowhood  by  marriage  ;8  nor  has  a  mortgagor, 
where  the  mortgage  is  foreclosed  by  the  mortgagee,  since  he 
could  have  avoided  its  destruction  by  payment  of  the  mort- 
gage.    But   if    the    purchaser  under   a    foreclosure   -ale, 

1  Taylor's  L.  &  T.  81 ;  Chelsey  p.  Welch,  87  Me.  106;  Kittredge  c  Woods. 

3  N.  II.   50:5;    Whitmarsta  p.  Cutting,  10  Johns.  3'.0:   Graves  r.  Weld,  5  B.  A 
Ad.  105;  Deboww.  Colfax,  10  N.  .F.  L.  12-;  Barria    .  Oarson,   7   Leigh,  I 
Spencer  v.  Lewis,  1  Houst.  '22-'. ;  Haslett  p.  Glesin,  7  liar.  »!t  .1.  17. 

2  Davis  v.  Thompson,  IS  Me.  209;  Sheeburne  p.  Jones,  20  Me.  70;  Chandler 
v.  Thurston,  10  Pick.  205;  Davis  ,-.  Brocklehank,  0  N.  H.  7i;  Stewart  r. 
Doughty,  9  Johns.  108;  Harris  p.  Fnnk.  4't  N.  Y.  24. 

3  Doe  v.  Turner  7  M.  &  W.  226.  Aja  •.•>  tenants  for  years  see  cases  cited 
iti  note  5,  p.  47. 

•  '  Penhallowv.  Dwight,  7  Mass.  34;  Kinguley  p.  Holbrook.  45  N.  H.  319; 
Howe  v.  Batchelder.  49  N.  H.  208;  Pattison'a  Appeal,  til  Pa.  St.  29.  But  thej 
will  pass  with  the  land  under  a  devise.  Bradner  P.  Faulkner.  84  N.  Y.  349. 
In  Mississippi  a  contrary  rule  is  maintained,  and  the  crops  pass  to  the  heir 
upon  the  death  ot  the  tenant  in  t'ee.  MeCormick  p.  McCorraick,  40  Miss.  768. 
See  also  on  the  general  subject,  2  Redf.  on  Wills,  143. 

5  2  Bla.  Com.  128;  CHesley  p.  Welch,  37  Me.  106;  Chandler*.  Thurston, 
10  I'ick.  210;  Whitmarsh  ».  Gutting,  10  Join  s.  860;  Rowel]  v.  Klein,  44  Ind. 
290;  Richard  p.  Liford.  11  Hep.  61  :   McLean  p.  Bovee,  21  Wis.  296. 

•  Debowr.  Colfax.  10  N.  J.  L.  128;   Hawkins  p.  Skegg,  10  Humph.  31. 

48 


€11.  V.]  ESTATES   FOB   LIFE.  §    72 

permits  the  mortgagor,  or  one  claiming  under  him,  to  retain 
possession  for  any  length  of  time,  and  plant  crops,  as  a 
tenant  at  sufferance  he  would  have  a  right  to  the  emble- 
ments.1 The  right  to  emblements  is  not  only  enjoyed  by 
the  parties  above  enumerated,  but  also  by  their  assignees, 
and  sublessees,  unless  the  tenant  is  re.-t  ricted  from  alienating 
the  land.  And  very  often  sublessees,  and  assignees  would 
be  entitled  to  emblements,  when  the  original  parties  would 
not.  Thus,  if  a  widow,  having  an  estate  during  widowhood, 
leases  the  premises,  and  then  marries,  her  tenant  would  be 
entitled  to  emblements,  while  she  would  not  have  been,  if 
she  had  been  in  possession.1 

§  72.  Definition  and  history  of  waste. — Every  tenant 
of  a  particular  estate  is  prohibited  from  doing  anything 
with  the  land  which  would  constitute  a  waste  in  the  legal 
acceptation  of  the  term.  The  subject  applies,  therefore,  to 
all  tenants,  whether  for  life  or  for  years,  or  at  sufferance. 
In  early  times  this  disability  was  attached  by  law  only  to 
estates  of  dower  and  curtesy,  it  being  supposed  that,  since 
they  were  created  by  the  act  of  the  law,  the  law  should  in 
all  cases  provide  for  the  due  protection  of  the  inheritance. 
But  in  the  case  of  conventional  estates  less  than  a  fee,  if 
the  grantor  did  not  expressly  provide  such  a  protection,  it 
was  his  own  fault,  and  he  was  left  without  a  remedy.  Sub- 
sequently, by  the  statute  of  Marlbridge,  the  disability  of 
committing  waste  was  made  an  ordinary  and  general  incident 

1  Doe  v.  Mace,  7  Black,  2;  Tobey  v.  Reed,  9  Conn.  216;  Cooper  v.  Davis, 
15  Conn.  556 ;  McCall  v.  Lenox,  9  Serg.  &  R.  302;  Jones  v.  Thomas,  8  Blackf. 
428;  Allen  v.  Carpenter,  15  Mich.  38.  And  the  same  rule  applies  to  a  mort- 
gagor's tenant,  who  holds  subject  to  the  mortgage.  Mayo  v.  Fletcher,  14 
Pick.  525;  Lynde  v.  Rowe,  12  Allen,  101 ;  contra,  Lane  v  King,  8  Wend.  584. 
But  where  the  crops  are  already  harvested,  when  the  mortgage  is  foreclosed, 
the  tenant  is  entitled  to  tliem ;  they  do  not  pass  to  the  purchaser  under  the 
mortgage.     Johnson  v.  Camp,  51  111.  220. 

2  2  Bla.  Com.  124;  Bulwer  v.  Bulwer,  2  B.  &  Aid.  470;  Davis  v.  Eyton,  7 
Bing.  1">4;  Bevans  v.  Briscoe,  4  Har.  &  J.  i:J9;  contra,  Oland's  Case,  5  Rep. 
116;  Debow  v.  Colfax,  10  N.  J.  L.  128;  Bittinger  v.  Baker,  29  Pa.  St.  70. 
See  also  contra,  note  1,  supra,  in  reference  to  mortgagor's  tenant. 

49 

4 


§    74  ESTATES   FOR   LIFE.  [PART    I. 

to  all  kinds  of  estates  for  life  and  for  years.  And  the 
statute  of  Gloucester  imposed  upon  the  guilty  party  the 
penalty  of  treble  damages,  together  with  the  forfeiture  of 
his  estate.1  Waste  is  any  unlawful  act  or  omission  of  duty, 
which  results  in  permanent  injury  to  the  inheritance.  It 
may  consist  in  either  diminishing  its  value,  in  increasing 
its  burdens,  or  destroying  and  changing  the  evidences  of 
title  to  the  inheritance.9  Waste  may  therefore  be  voluntary, 
as  by  an  act  of  commission,  and  involuntary,  by  an  act  of 
omission.1 

§  73.  What  arts  constitute  waste  —  General  rule. — 
Whether  a  particular  a«-t  constitutes  waste  is  a  question  of 
fact  for  the  jury  to  determine.  If  it  does  damage  to  the 
reversioner,  and  is  not  one  of  the  ordinary  use-,  to  which 
the  land  is  put,  it   is  waste.     And  the  same  aet   might  be 

waste  in  one  part  of  the  country,  while  in  another  it  is  a 
legitimate  useof  the  land.  '1'he  usages  and  customs  of  each 
community  enter  very  hugely  into  the  .settlement  of  this 
question.4 

§  7  1.  Waste  —  In  respeet  to  trees.  —  The  tenant  has  QO 
right  to  cut  down  any  trees,  or  to  injure  them  in  any  way, 
beyond  the  amount   he  is  entitled  to  as  estovers.     And  at 

1  1  Washb.  on  Real  Prop.  189,  140. 

2  2  Bla.  Com.  281;  Huntley  v.  Russell,  18  Q,  B.  588;  Doe  v.  Burlington,  5 
B.  &Ad.  517;  Jones  i\  Ohappell,  L.  R,  20  Eq.  539:  McGregor*.  Brown.  10 
N.  Y.  117;  Promt  v.  Henderson,  29  Bio.  827.  And  in  some  cases  the  law- 
raises  a  conclusive  presumption  that  the  act  complained  of  is  an  injury  to  the 
inheritance,  and  therefore  constitutes  waste.  McGregor  v.  Brown,  supra; 
Agate  v.  Lowenbein,  57  N.  Y.  604,     See  post,  Beets.  74,  77. 

3  2  Bla.  Com.  281;  1  Washb.  on  Real  Prop.  140.  Thus,  to  alter  a  build- 
ing, so  as  to  change  the  manner  of  using  it,  is  voluntary  waste.  To  let  it  fall 
into  decay,  is  permissive  or  involuntary  waste.     Bee  ■  77. 

*  See  Drown  r.  Smith,  .",-2  Me,  1 13;  Keeler  <■  Eastman,  11  Yt.  S93;  Jackson 
w.  Tibbits,  8  Wend,  .".11 ;  Pynchon  u.  Stearns,  11  Mete.  304;  Lynon's  Ap] 
31  Pa.  St.  46;  Webster  ».  Webster,  83  N.  II.  25;  Morehouse  ».  Cotheal,  22  N. 
J.  L.  521  ;  Jackson  v.  Brown-on.  7  Johns.  227  ;  Sarles.  r.  Sail,  s,  Sa  If.  Ch. 
601  ;  Adams  v.  Brereton,  S  11. ir.  &  J,  124;  Davis  r.  Gilliam,  5  lred.  Kq.  811  j 
Crockett  i>.  Crockett,  2  Ohio  St.  180. 

50 


(II.  V.]  ESTATES    FOR    LIFE.  §    74 

common  law  certain  trees,  which  were  used  for  timber, 
could  not  be  cut  for  any  purpose.1  But  in  this  country  the 
question  would  depend  niton  whether  the  cutting  of  a 
particular  tree  would  be  consonant  with  Lri><»d  husbandry, 
in  its  relation  to  the  inheritance  and  the  surrounding  cir- 
cumstances.' In  the  case  of  wild  and  uncultivated  land-, 
the  tenant  would  have  the  right  to  clear  the  land  of  the 
trees,  whatever  they  may  be,  if  such  clearing  was  accessary 
for  the  purpose  of  cultivating  it.3     And  the  timber  cut  by 

1  2  Bla.  Com.  281 ;  1  Washb.  on  Real  Prop.  141 ;  Honywood  v.  Honywood, 
L.  R.  18  Eq.  306.  Mr.  Washburn  mentions  oak,  ash  and  elm,  as  being 
timber  trees  in  all  parts  of  England,  while  others  constitute  timber  in  some 
sections,  and  not  in  other  sections,  according  to  local  usages  and  customs,  p. 
141,  supra.  Timber  trees  are  those  which  aro  used  lor  building  and  repairing 
houses.  Chandos  v.  Talbot,  2  P.  "Wins.  GOG;  Alexander  v.  Fisher,  7  Ala. 
514.  The  only  purpose  for  which  the  tenant  may  cut  timber  is  for  the  repair 
of  the  buildings  on  the  land,  which  he  is  under  obligation  to  keep  in  repair. 
22  Vin.  Abr.  453;  Doe  v.  Wilson,  11  East,  56.  And  he  cannot  cut  timber 
unsuitable  for  repair,  to  sell  and  procure  other  timber  which  is  suitable. 
See  ante,  sect.  69. 

2  Keeler  v.  Eastman,  11  Vt.  293;  Chase  v.  Hazleton,  7  N.  H.  171 ;  Hick- 
man v.  Irvine,  3  Dana,  121;  Sarles  v.  Sarlcs,  3  Sandf.  Ch.  601 ;  Givens  v. 
McCalmont,  4  Watts,  460;  Shine  v.  Wilcox,  1  Dev.  &  B.  Eq.  631;  Smith  v. 
Poyas,  2  DeS.  65;  Crockett  v.  Crockett,  2  Ohio  St.  180;  Owen  v.  Hyde,  6 
Yerg.  334;  Alexander  v.  Fisher,  7  Ala.  514.  But  it  is  an  almost  universal 
rule,  that  shade  and  ornamental  trees  cannot  be  cut  down  by  the  tenant. 
Honywood  v.  Honywood,  L.  R.  18  Eq.  306  ;  Hawley  v.  Wolverton,  5  Paige, 
522;  Dunn  v.  Bryan,  7  Ired.  Eq.  143;  Marker  v.  Marker,  9  Hare,  1.  So  also 
is  it  waste  to  cut  young  trees.  Dunn  v.  Bryan,  supra.  In  conformity  with  the 
rule  enunciated  in  the  text,  it  has  been  held  in  Massachusetts  that  the  cutting 
of  oak  for  firewood  is  not  waste  according  to  the  common  usage  and  custom 
in  that  State.     Padelford  v.  Padelford.  7  Pick.  162. 

3  Drown  v.  Smith,  52  Me.  141  ;  Keeler  v.  Eastman,  11  Vt.  293;  McGregor 
w.Brown,  10  N.  Y.  118;  Jackson  v.  Brownson,  7  Johns.  227;  McCullough  v. 
Irvine,  13  Pa.  St.  438;  Harder  v.  Harder,  20  Barb.  414;  Morehouse  v.  Cotheal, 
22  N.  J.  L.  521 ;  Hastings  v.  Crunckieton,  3  Yeates,  261 ;  Davis  v.  Gilliam,  5 
Ired.  Eq.  311 ;  Woodward  v.  Gates,  38  Ga.  205;  Adams  v.  Brereton,  3  Har.  & 
J.  124;  Crockett  v.  Crockett,  2  Ohio  St.  180;  Proffitt  v.  Henderson,  29  Mo. 
327.  And  the  same  rule  is  now  applied  to  a  dowress,  although  formerly 
under  the  old  rule,  that  the  tenant  of  a  particular  estate  could  under  no  cir- 
cumstances change  woodland  into  arable  land,  the  widow  was  held  not  to  have 
dower  in  wild  lands.  4  Kent's  Com.  76;  Ballantine  v.  Poyner.  2  Hayw.  110; 
Parkins  v.  Coxe,  lb.  330;  Hastings  v.  Crunckieton,  3  Yeates,  261;  Owen  a. 
Hyde.  6  Yerg.  334;  Findlay  v.  Smith,  6  Munf.  134;  Alexander  v.  Fisher,  7 

51 


§    75  ESTATES    FOR    LIFE  [PART    I. 

the  tenant  in  clearing  belongs  to  him,  which  he  may  sell  for 
his  own  profit.1  But  in  no  case  is  the  tenant  allowed  to  cut 
timber  for  sale,  unless  this  is  the  customary  mode  of  using 
the  land.2 

§  75.  Continued  —  In  respect  to  minerals  and  other 
deposits.  —  The  tenant  is  not  permitted  to  dig  and  sell 
gravel,  clay  and  other  deposits,  which  may  be  found  thereon, 
or  to  use  the  clay  tor  the  purpose  of  making  bricks. 3  If, 
however,  it  had  been  the  custom  with  previous  owners  to 
make  such  use  of  the  land,  the  tenant  may  continue  to  use 
what  pits  and  mines  are  already  opened,  but  he  cannot  open 
new  ones.4     In  the  case  of  minerals  he  may  follow  the  same 

Ala.  514.     See  contra,  Connor  v.  Shepherd,   1">   Mas.   164.     Rut  it  must  be 
with  the  bona  fide  intention  to  cleur  the  land.    1:,  under  this  pretence,  the 
tenant  is  really  cutting  for  the  purpose  of  profiting  by  the  sale  of  I 
it  will  be  waste,   notwithstanding  the  land  is  made  more  valuable  by  being 
cleared.    Sec  Kidd  >•.  Dennison,  6  Barb.  s;  Davis  v.  Gilliam,  supra. 

1  Davis  t».  Gilliam,  5  Ired.  Eq.  811;  Crockett  r.  Crockett,  2  Ohio  St.  ISO. 

2  Chase  ».  Hazleton,  7  N.  H.  171;  Clen  •  272;  Par- 
ians v.  Coze,  2  Hay w.  839;  Kidd  o.  Dennison.  6  Barb.  9.  But  if  the  land  ia 
customarily  used  in  cultivating  trees  tor  sale,  the  tenant  may  f 
custom,  and  continue  to  cut  and  sell  the  wood.  Bagot  ,  B  Bear. 
509;  Clemen.;  iupra;  Ballentine  v.  Poyner,  2  Hayw.  110.  So  ulso 
if  the  land  is  let  with  a  furnace-  or  turpentine  still,  wood  may  be  cut  for  use 
in  the  furnace,  or  the  pine  may  be  tapped  for  rosin  to  be  used  in  the  still,  if 
that  had  been  the  custom  with  former  owners.  Den  D.  Kenney,  6  N.  J.  L. 
652;  Findlay  v.  Smith,  6  Munf.  134;  Carr  o.  Carr,  4Dev.  &  R.  170.  And 
when  the  cutting  of  some  of  the  trees  is  necessary  to  facilitate  the  growth  oC 
others,  the  tenant  may  likewise  cut  them  for  that  purpose.  Ceelei  c.  East- 
man, 11  Vt.  20.*;    Cowhv  r.  W'ellesley,  L.  R.  1  Eq.  656. 

3  Co.  Lit.  53  b;  Huntley  v.  Russell,  13  Q.  B.  572;  Livingston  p.  Reynolds, 
2  Hill,  157.  So  also  to  open  new  mines,  or  to  make  excavations  in  search  for 
mines,  would  be  waste,  unless  the  right  is  expressly  granted.  2  Rla.  Com. 
282;  Saunder's  Case,  5  Rep.  12:  Darcy  v.  Askwith,  Ho  ugbton  r. 
Leigh,  1  Taunt.  410;  Yiner  r.  Vaughan,  2  Beav.  466;  Irwin  v.  Covode,  24  Pa. 
St.  162;  Owings  o.  Emery,  6  Gill,  260. 

4  Huntley  <•.  Russell,  13  Q.  R.  591  ;  Moyle  v.  Movie.  Owen.  66;  Knight  r. 
Moseley,  Amb.  17G ;  Stoughton v.  Leigh,  1  Taunt,  4:0;  Neel  v.  Neel,  1  I  Pa. 
St  324;  Kier  v.  Peterson,  41  Pa.  St.  861;  Crouch  v.  Puryear,  1  K 
Findlay  v.  Smith,  6  Munf.  134;  Billings  i>.  Taylor,  10  Pick.  460;  Irwin  r. 
Covode,  24  Pa.  St.  162;  Coatea  v.  Checver,  1  Cow.  460;  Leufers  ».  Heuke,  73 
111.405;  21  Am.  Rep.  263;  Hendrixr.  McBeth,  61  Ind.  473;  28  Am.  Rep.  6S0. 

52 


CH.  V.]  ESTATES    FOR  LIFE.  §    77 

vein  and  for  the  purpose  may  make  now  shafts,  railroads, 
and  other  improvements.1 

§  7(5.   Continued  —  Management  and  culture  of  land.  — 

At  common  law  it  was  not  permitted  of  the  tenant  of  a 
particular  estate  to  change  the  character  of  the  land,  as 
wood,  pasture  or  arable  land,  and  put  it  to  a  different  use. 
Any  such  change  in  the  management  or  culture  of  the"  land 
constituted  waste,  for  which  the  tenant  would  be  answer- 
able to  the  reversioner.2  The  rule,  however,  in  this  country 
is,  that  no  such  change  will  be  waste  unless  it  results  in  a 
permanent  injury  to  the  inheritance.  In  each  case  it  is  a 
question  of  fact,  whether  a  particular  act  is  waste,  and  it  is 
very  largely  governed  by  the  usages  and  customs  of  the 
place  in  which  the  question  arises.3  The  tenant,  however, 
is  obliged  to  use  the  land  in  the  manner  required  by  the 
rules  of  good  husbandry,  and  it  will  be  waste  if  he  permits 
the  arable  or  meadow  lands  to  be  overgrown  with  brush- 
wood,  or  if  he  exhausts  the  lands  by  unwise  tillage.4 

§  77.  Continued — In  respect  to  buildings. — In  like 
manner  at  common  law,  the  strict  rule  was  applied,  that 
any  change  in  the  character  of  the  building,  even  though  it 

1  Clavering  v.  Clavering,  2  P.  Wms.  388;  Billings  v.  Taylor,  10  Pick. 
460;  Coates  v.  Cheever,  1  Cow.  460;  Irwin  v.  Covode,  24  Pa.  St.  162  \  Lynn's 
Appeal,  31  Pa.  St.  45;  Kier  v.  Peterson,  41  Pa.  St.  361;  Crouch  v.  Puryear, 
1  Rand.  258  f  Findlay  v.  Smith,  6  Munf.  134. 

*  2  Bla.  Com.  282;  Co.  Lit.  53  Darcy  v.  Askwith,  Hob.  234  a;  1 
Washb.  on  Real  Prop.  145. 

s  Keeler  v.  Eastman,  11  Vt.  293 ;  Clemence  v.  Steere,  1R.I,  272 ;  "Webster 
v.  Webster,  33  N.  H.  25;  Jones  v.  Whitehead,  1  Pars,  304;  Sarles  v.  Sarles, 
3  Sandf.  601 ;  McGregor  v.  Brown,  10  N.  Y.  118 ;  Crockett  v.  Crockett,  2  Ohio 
St.  180;  Owen  v.  Hyde,  6  Yerg.  334;  ProfBtt  v.  Henderson,  29  Mo.  327. 

*  Clemence  v.  Steere,  j  R.  I.  272;  Clark  v.  Holden,  7  Gray,  8;  Sarles  v 
Sarles,  3  Sandf.  Ch.  601.  Likewise  the  removal  of  grasses,  manure  mad<? 
upon  the  land,  and  the  digging  of  turf,  which  by  the  rules  of  good  husbandry 
should  be  left  upon  the  land  to  enrich  it,  would  be  waste.  Sarles  v.  Sarles, 
supra;  Daniels  v.  Pond,  21  Pick.  371;  Moulton  v.  Robinson,  27  N.  H.  G5fi 
Plumer  v.  Plumer,  30  N.  H.  558;  Middlebrook  v.  Corwin,  15  Wend.  169; 
L«»wis  v.  Jones,  17  Pa.  St.  262 ;  Harris  v.  Mins,  20  W.  R.  999. 

53 


§    77  ESTATES    FOR   LIFE.  [PART    I. 

resulted  in  a  benefit  to  the  inheritance,  would  be  consid- 
ered waste.  Thus  the  removal  of  wainscots,  the  opening 
of  new  doors  or  window-,  as  well  as  the  more  important 
change  of  the  building  from  a  dwelling  house  to  a  .-tore,  or 
a  change  in  the  location  of  the  building,  were  held  to  be 
waste.1  A  more  liberal  rule  is  now  applied,  and  actual 
damage  must  be  shown,  in  order  that  the  action  might  lie.1 
And  although  even  now  a  material  and  permanent  change 
in  the  character  of  the  building,  and  the  uses  to  which  it 
might  be  put,  will  not  be  permitted,  yet  any  slight  or 
immaterial  change,  as  the  cutting  of  a  door  or  the  opening 
of  two  rooms  into  one,  will  be  permissible,  whenever  it  1- 
possible  for  the  premises  to  be  restored  to  its  original  con- 
dition at  the  end  of  his  term,  and  in  no  case  is  it  likely 
that  the  erection  of  new  buildings  will  be  considered 
waste.3  The  tenant  is  also  under  obligation  to  keep  the 
buildings  in  repair,  and  is  responsible  in  damages,  if  he 
permits  them  to  fall  into  decay.     Tenants  for  life  or  for 

1  Co.  Lit.  53  a,  aote  844;  City  of  London  o.  Greyme,  Cro.  Jac.  181;  1 
Washb.  on  Real  Prop.  146;  Huntley  o.  Russell,  18  <>.  B. 

2  Saund.  252;  Jackson  t».  Cator,   6  Ves.  <$^:  Douglass  o.  Wiggins,  1  .1 

Ch.  435;  Agate  v.  Lowenbein,  67  N.  ST.  604  :  Mannsell  0.  Hart,  11  lred.  K.j. 
478;  Thatcher  v.  Phinney,  7  Allen's  Tel.  Cas.  146;  Austin  0.  Stevens,  24  Me. 
520;  Wall  v.  Hinds,  4  Gray,  256.  But  he  may  tear  down  a  ruinous  building, 
which  is  dangerous  to  his  cattle  or  to  life  and  limb.  Clemence  v.  Steere,  1 
R.  I.  272. 

2  Young  v.  Spencer,  10  B.  &  C.  14">:  Doe  0.  Burlington,  5  B,  A  A  L 
507;  Webster  v.  Webster,  33  N.  II.  25;  McGregor  v.  Brown.  10  N\  v. 
118;  Jackson  v.  Tibbits,  3  Wend.  341 ;  Phillips  v.  Smith.  14  Mees.  &  W.  595; 
Jackson  v.  Andrew,  18  Johns.  431. 

3  Jones  v.  Chappelle,  L.  R.  20  Eq.  589;  Winship  p.  Pitts,  3  Paige. 
259;  Jackson  v.  Tibbits,  3  Wend.  841;  Barlea  0.  Sarles,  3  Sandf.  Ch.  601; 
Beers  u.St.  John,  16  Conn.  829.     See  cases  cited  in  notes  land  2,  supra.     A 

the  structure  is  an  agricultural  fixture,  which  the  tenant  may  remove  accord- 
ing to  the  law  of  fixtures,  il  is  certainly  no  act  of  waste  for  him  to  put  it  I 
and  he  may  remove  it  at  the  expiration  of  the  estate,  if  he  can  do  so  with- 
out materially  injuring  the  inheritance.  Van  Ness  0.  Pacard,  2  |Vt.  137; 
Austin  r.  Stevens,  24  Me.  620;  Clemence  d.  Steere,  1  R.  I.  -7:2;  Was! 
v.  Sproat,  16  Mass.  449;  McCullough  v.  Irvine,  18  Pa.  St  I  •:  D  ier  »• 
Gregory,   1   Jones  L.   100.      But  so  Ma  1  1.    McCarthy,     108    ' 

Benney  0.   Foss,  62  Me.  261  ;  Conklin  0.  Poster,  57  111.  104, 
54 


CII.  V.]  ESTATES    FOR    LIFE.  §    79 

years,  are  required  to  make  all  the  repairs  necessary  to  keep 
the  premises  in  as  good  condition  as  they  were  when  they 
entered  into  possession ;  and  for  that  purpose  they  may 
use  the  timber  to  be  found  on  the  land.1  But  the  tenant 
is  obliged  to  repair,  even  though  there  be  no  timber  on  the 
land.2  He  will  not,  however,  be  forced  to  expend  any 
very  large  sums  of  money,  where  there  has  been  any 
extraordinary  decay  or  destruction  of  the  buildings.  And 
if  the  buildings  were  in  a  state  of  decay  at  the  time  when 
his  term  begun,  he  will  not  be  called  upon  to  repair.3 
The  tenant  from  year  to  year  is  only  required  to  keep  the 
buildings  wind  and  water  tight.  He  is  not  expected  to 
provide  against  the  ordinary  wear  and  tear.4 

§  78.  Continued  —  Acts  of  strangers. — The  tenant  is 
not  responsible  for  damages  done  by  the  act  of  God,  the 
public  enemies,  or  by  the  law.  But  he  is  obliged  to  pro- 
tect the  premises  from  waste  by  strangers,  and  for  the  acts 
of  such  persons  he  is  responsible  to  the  reversioner.6 

§    79.   Continued  —  Destruction  of  buildings  by  fire. — 

If  the  buildings  are  destroyed  by  fire  through  the  careless- 
ness  of   the   tenant  or   his   servants,  he   is  responsible  in 

1  1  Washb.  on  Real  Prop.  149;  Long  v.  Fitzsimmons,  1  Watts  &  S. 
530;  Darcy  v.  Askwith,  Hob.  234;  Miles  v.  Miles,  32  N.  H.  147;  Harder  e. 
Harder,  26  Barb.  409;  Sticklebone  v.  Hatcbman,  Owen,  43;  Walls  v.  Hinds, 
4  Gray,  256;  Griffith's  Case,  Moore,  69;  Co.  Lit.  53  a;  Wilson  v.  Edmonds, 
24  N.  H.  517 ;  Kearney  v.  Kearney,  17  N.  J.  Eq.  504 ;  Harvey  v.  Harvey,  41 
Vt.  373. 

s  Co.  Lit.  53  a ;  1  Washb.  on  Real  Prop.  149. 

3  Co.  Lit.  53,  54  b;  Wilson  v.  Edmonds,  24  N.  H.  517;  Clemence  v. 
Steere,  1  R.  I.  272. 

4  Torrraiano  v.  Young,  6  C.  &  P.  8  ;  Answorth  v.  Johnson,  5  C.  &  P.  239 ; 
Bullock  v.  Dommit,  6  T.  R.  650;  Doe  v.  Amey,  12  Ad.  &  E.  476;  Wise  v. 
Metcalfe,  10  B.  &  C.  299. 

5  Co.  Lit.  53  a,  54  a;  Huntley  v. Russell,  13  Q.  B.  591 ;  Attersoll  v.  Stevens, 
1  Taunt.  198;  Fay  v.  Brewer,  3  Pick.  203;  Pollard  ».  Shaffer,  1  Dall.  210; 
Wood  v.  Griffin,  46  N.  Y.  237;  Cook  v.  Champlain  Trans.  Co.,  1  Denio,  91 ; 
Austin  v.  Hudson  R.  R.,  25  N.  Y.  341 ;  White  v.  Wagner,  4  Har.  &  J.  373; 
Beers  v.  Beers,  21  Mich.  464. 

55 


§    81  ESTATES    FOR    LIFE.  [PART    I. 

damages,  but  he  is  not  liable  if  it  is  the  result  of  an  acci- 
dent, and  he  is  free  from  fault.1 

§  80.  Exemption  from  liability.  —  Although  the  liability 
for  waste  is  an  ordinary  incident  of  all  kinds  of  particular 
estates,  the  lessor  or  reversioner  may  by  grant  exempt  the 
tenant  from  such  liability.  He  is  then  said  to  have  an 
estate  for  life  or  for  years  "  without  impeachment  of 
waste."  Such  a  tenant  may  do  any  of  those  things 
enumerated  above,  which  is  usually  denied  to  a  tenant  of  a 
particular  estate2.  But  he  cannot  commit  wilful  and  mali- 
cious waste,  and  will  be  restrained  from  doing  so  if  he 
attempts  it ;  or,  if  he  has  already  done  bo,  he  will  be  made 
to  respor,  I  in  damages.3 

§  81.  Remedies  for  waste.  —  If  the  waste  is  already 
committed,  the  tenant  is  liable  to  an  action  at  law  for 
damajres.  At  common  law,  under  the  statutes  of  Marl- 
bridge  and  Gloucester,  the  judgment  was  given  for  treble 
the  actual  damage,  and  the  land  wasted  was  forfeited  to  the 
reversioner.4  The  forms  of  the  common-law  actions,  as 
well  as  the  nature  of  the  judgment,  are  now  regulated  in  the 
different  States  by  statute,  and  for  details  the  reader  is  refer- 
red to  these  statutes.6     If  the  waste  is  only  threatened,  or 

1  By  statute  (6  Anne,  ch.  31)  the  English  common  law  of  liability  for  loss 
by  lire  was  limited  to  cases  where  the  fire  occurred  through  the  negligence 
of  the  tenant  or  his  servant;  and  although  there  has  been  no  general  express 
re-enactment  of  it,  the  statutory  qualification  seems  to  have  been  generally 
adopted,  in  conformity  with  the  statement  in  the  text  See  Filliter  v.  Phip- 
pard,  11  Q.  15.  317;  Barnard  v.  Poor,  21  Tick.  S78;  Clark  v.  Koot,  S  Johns. 
421;  Lansing  v.  Stone,  37  Barb.  15;  Althorf  v.  Wolfe,  22  X.  Y.866;  Maul]  <■. 
Wilson,  2  Harr.  443;  4  Kent's  Com.  82;  1  Washb.  on  Real  Prop.  150,  151; 
Spaulding  v  Chicago  and  C.  R.  R.,  30  Wis.  110. 

2  2  Bl.  283;  1  Cruise  Dig.  128;  Lewis  Bowie's  Case,  11  Rep.  83;  Pyne  v. 
Dor,  1  T.  R,  56;  Cholmelev  o.  Paxton,  2  Bing.  207. 

8  1  Washb.  on  Real  Prop.  155;  Vane  r.  Barnard,  2  Tern.  738;  Marker 
v.  .Marker,  4  Eng.  Law  &  Eq.  96. 

*  5  Bla.  Com.  28:1;   1  Washb.  on  Real  Prop.  152. 

5  1  Washb.  on  Real  Prop.  153,  157,  note;  4  Kent's  Com.  79.  The  treble 
damages  may  still  be  obtained  in  some  of  the  States.  Sackett  v.  Sackett,  8 
56 


CH.   V.]  ESTATES    FOB    LIFE.  §    81 

there  is  danger  of  its  repetition  in  the  future,  the  equitable 
remedy  by  injunction  is  more  salutary.  The  tenant  is 
enjoined  from  the  commission  of  the  waste,  upon  pain  of 
punishment  for  contempt  of  court.1  An  injunction  will  be 
granted  in  every  case  of  waste,  where  irreparable  injury  i- 
feared.  The  injury  need  not  perhaps  be  very  material  where 
the  question  arises  between  persons  in  privity  of  estate  ;  but 
as  between  strangers  it  is  necessary  to  show  that  the  danger 
is  immediate  and  the  probable  injury  material  before  the 
court  will  interpose.2  And  if  injury  has  already  been 
done,  the  court  will  not  only  grant  an  injunction  against 
future  waste,  but  it  is  competent  for  the  court  to  inquire 
into  the  amount  of  damage  suffered,  and  give  judgment  for 
the  same.3  At  common  law  the  technical  action  for  wraste 
and  treble  damages  could  011I3'  be  maintained  by  the  tenant 
of  an  estate  of  inheritance  immediately  succeeding  the 
particular  estate.  And  the  interposition  of  a  freehold 
estate  in  remainder  would  take  away  his  action.4  But  the 
common-law  action  upon  the  case  in  the  nature  of  waste 

Pick.  306;  Harder  v.  Harder,  26  Barb.  409;  Chipman  v.  Emeric,  3  Cal.  283. 
While  single  damages  only  can  be  obtained  in  others.  Smith  v.  Follansbee, 
13  Me.  273 ;  Harker  v.  Chambliss,  12  Ga.  235 ;  Woodward  v.  Gates,  38  Ga. 
205.  In  most  of  the  States  the  amount  of  damages  is  regulated  by 
statute. 

1  2  Bla.  Com.  283 ;  Jones  v.  Hill,  1  Moore,  100 ;  Tracy  v.  Tracy,  1  Vern. 
23 ;  Kane  v.  Vanderburgh,  1  Johns.  Ch.  11 ;  Harris  v.  Thomas,  1  Hen.  &  M.  18; 
Mayo  v.  Feaster,  2  McCord  Ch.  137;  Mollineaux  v.  Powell,  3  P.  Wms.  268. 
But  it  has  been  held  that  statutory  remedies,  when  they  afford  ample  pro- 
tection, supersede  the  equitable  remedy.  Cutting  v.  Carter,  4  Hen.  &  M. 
424;  Poindexter  v.  Henderson,  Walk.  (Mich.)  176. 

2  Leighton  v.  Leighton,  32  Me.  399;  Attaquin  v.  Fish,  5  Mete.  140;  Atkins 
v.  Chilson,  7  Mete.  398;  Rodgers  v.  Rodgers,  11  Barb.  595;  Livingston  v. 
Reynolds,  26  Wend.  115 ;  Storm  v.  Mann,  4  Johns.  Ch.  21 ;  Georges  Creek  Co. 
v.  Detmold,  1  Md.  Ch.  371 ;  Poindexter  v.  Henderson,  Walk.  (Mich.)  176 ;  Lon> 
don  v.  AVarfield,5  J.  J.  Marsh.  196;  White  Water  Canal  v.  Comegys,  2  Ind. 
469;  Field  v.  Jackson,  2  Dick.  599. 

3  Story's  Eq.  Jur.,  sects.  517,  518;  1  Washb.  on  Real  Prop.  161;  Watson 
v.  Hunter,  5  Johns.  Ch.  170;  Ware  v.  Ware,  6  N.  J.  Eq.  117. 

*  Co.  Lit.  218  b,  note  122;  Williams  v.  Balton,  3  P.  Wms.  268;  Bacon  v. 
Smith,  1  Q.  B.  345 ;  Hunt  v.  Holl,  37  Me.  363 ;  Peterson  v.  Clark,  15  Johns. 
205,  206. 

57 


§    82  ESTATES    FOR    LIFE.  [PART    I. 

could  be  maintained  by  any  one  who  had   a   reversionary 
interest  in  the  land,  and  had  been  injured  thereby.1 

§  82.  Property  in  timber  unlawfully  cut.  —  If  timber 
is  unlawfully  cut  from  the  premises,  the  reversioner  in  fee 
continues  to  have  the  property  in  it,  and  he  may  recover 
damages  or  the  possession  of  the  timber,  and  for  that 
purpose  he  may  maintain  any  of  the  personal  actions  of 
trover,  replevin  or  trespass  de  bonis.2  And  the  same 
principle  is  applied  to  any  article  of  a  personal  nature, 
which  has  been  unlawfully  severed  from  the  freehold.3 

1  Chase  v.  Hazelton,  7  N.  H.  175;  Williams  r.  Bolton,  3  P.  Wms.  268. 
Hut  in  the  Code  States  this  distinction  between  trespass  and  trespass  on  the 
case  has  been  abolished.     Brown  r.  Bridges,  80  Iowa,  146. 

a  Lewis  Bowles'  Case,  11  Rep.  82;  Seagram  v.  Knight,  L.  EL  2  Ch.  App. 
631;  Richardson  v.  York,  14  Me.  216;  Jones  9.  Hoar,  6  Pi  .  286;  Lane  v. 
Thompson,  43  N.  II.  824;  Bulkley  o.  Dolbeare,  7  Conn.  233;  Mooers  r. 
Wait,  3  AVend.  104;  Berrimaim  p.  Peacock,  9  Bing.  396;  Channon  t  Patch,  6 
B.  &  C.  897 ;  Achey  v.  Hull,  7  Mich.  423 ;  Frothingham  p.  McKusick,  24  Me. 
403;  Langdon  r.  Paul,  22  Vt.  205. 

3  1  Washb.  on  Real  Prop.  155. 

58 


CHAPTERYI. 

ESTATES  ARISING  OUT  OF  THE  MARITAL  RELATION. 

Section    I.  — Estate  of  husband  during  coverture. 
IT.  —  Curtesy. 

III.  —  Dower. 

IV.  —  Homestead. 

SECTION  I. 

ESTATE   OF    HUSBAND   DURING    COVERTURE. 

SECTION.  90.  Effect  of  marriage  upon  wife's  property. 

91.  How  husband's  rights  may  be  barred. 

92.  How  prevented  from  attaching. 

93.  Restrictions  upon  alienation  of  wife's  separate  property. 

94.  Statutory  changes  in  this  country. 

§   90.  Effect  of  marriage  upon  wife's  property. — The 

legal  personality  of  the  wife  is  lost  by  marriage  in  that  of 
the  husband.  In  the  eye  of  the  common  law  they  are  con- 
sidered and  treated  as  one  person,  the  husband  being  the 
head  and  representative  of  the  duality.  According  to  the 
common  law,  therefore,  the  wife  cannot,  during  coverture, 
hold  and  be  possessed  of  property,  either  real  or  personal, 
independent  of  her  husband.  Her  rights  become  merged 
for  the  time  being  in  his.  If  the  property  is  real  estate, 
the  husband  is  entitled  to  the  rents  and  profits  which 
accrue  during  coverture.1  If  the  rents,  which  are  due, 
remain  uncollected  at  his  death,  his  personal  representatives 
are  entitled  to  them,  in  preference  to  the  widow.2  The 
husband  is  also  alone  authorized  to  sue  for  accruing  rents/ 

1  1  Bla.  Cm.  U2;    1  Washb.  on  Real  Prop.  328,  329;    Williams  on  Real 
Prop.  223,  224. 

2  Shaw  v.  Partridge,   17  Vt.  626;    Jones  v.  Patterson,    11   Barb.  572;    1 
Washb.  on  Real  Prop.  329 ;  Williams  on  Real  Prop    223. 

3  Babb  v.  Perley,  1  Me.  6 ;   Mattocks  v.  Stearns,  9  Vt.  326 ;  Fairchild  v. 

59 


§    91  ESTATES    OUT    OF    MARITAL    RELATION.  [PART    I. 

He  can  also  alien  his  wife's  lands  or  the  rent-  and  profit- 
thereof  during  coverture.1  His  estate  is  a  freehold  estate 
of  uncertain  duration,  which  is  limited  by  the  continuance  of 
the  coverture,  and  which  may  last  during  his  life.2  But, 
notwithstanding  this  almost  unrestricted  control  over  her 
lands,  the  husband  is  not  treated  as  having  the  sole  seisin 
thereof.  They  are  regarded  as  being  jointly  seised  in  fee, 
and  in  an  action  for  injury  to  the  inheritance,  the  pleadings 
should  be  in  their  joint  names,  and  contain  a  declaration  of 
their  joint  seisin.3  The  husband,  however,  cannot  incumber 
or  alien  his  wife's  estate  in  reversion.  She  takes  it  at  his 
death,  unaffected  by  any  disposition  he  might  have  made 
of  it  during  coverture.4 

§  HI.  How  husband's  rights  may  be  barred.  —  His 
rights  during  coverture  are  barred  if  tin'  wife's  inheritance 
is  forfeited  for  any  cause  ;  and  he  is  divested  of  them  by  a 
divorce  a  vinculo.6 

Chastclleaux,  1  Pa.  St.  176.  And  this  is  true  of  all  actions  for  protection  of 
the  freehold,  where  the  inheritance  is  not  materially  affected.  But  where  the 
trespass  affects  the  inheritance,  the,  action  should  be  in  their  joint  names 
Babb  v.  Perley,  supra ;  Dippers  at  TunbriJge  Wells,  2  Wils.428;  2  Kent'a 
Com.  131.     See  post,  note  8. 

1  Co.  Lit.  826  a.  note  2S0;  Robertson  v.  Norris.  11  Q.  P..  910;  Trask  p. 
Patterson,  29  Me.  490 ;  McClain  v.  Greg-,  2  A.  K.  Marsh.  454;  Mitchell  r. 
Sevier,  9  Humph.  146;  Williams  on  Real  Prop.  227.  But  in  Massachusetts  a- 
different  doctrine  is  held,  i.e.,  that  the  husband  baa  no  power  to  convey  the 
wife's  property  without  her  assent,  not  even  the  estate  he  has  during  coverture. 
Walsh  v.  Young,  110  Mass.  396. 

3  Co.  Lit.  351  a;  Babb  v.  Perley,  1  Me.  6;  Melvin  r.  Proprietors.  16  Pick. 
165;  1  Washh.  on  Real  Prop.  329. 

3  Co.  Lit.  67  a ;  Poole  v.  Longue\  ille,  2  Saund.  283 ;  Polyblank  v.  Hawkins. 
Dougl.  314;  Moore  v.  Vinten,  12  Sim.  Ch.  164;  Melvin  r.  Proprietors,  16 
Pick.  165;  Cole  v.  Wolcottville  llfg.  Co.,  B5  Oonn.  178;  Hall  r.  Sayre,  10  B. 
Mon.  46;  Babb  v.  Perley,  1  Me.  6 ;  2  Keats  Com.  131;  1  Washb.  on  Real 
Prop.  330. 

*  1  Washb.  on  Real  Prop.  333:  Williams  on  Real  Prop.  221,  227;  Miller 
v.  Snowman,  21  Me.  201;  Bruce  c.  Wood,  1  Mete.  542;  Cleary  r.  nfcDowaU* 
1  Cheves,  139. 

5  Co.  Lit.  351  a;  1  Washb.  on  Real  Prop.  330;  Burt  v.  Hurlburt,  It'.  Yt. 
292 ;  Oldham  v.  Henderson.  5  Dana,  257 

60 


CH.  VI.]         ESTATES   OUT   OF   MARITAL    RELATION.  §    93 

§   02.   How  prevented  from  attaching.  —  The  husband's 

marital  rights  will  attach  to  all  kinds  of  real  property, 
both  legal  and  equitable,  where  there  is  do  express  prohibi- 
tion or  release  of  the  same.  But  equity  very  often  treats  a 
married  woman  as  if  she  were  single,  and  will  protect  her 
property  against  the  claims  of  the  husband,  whenever  it  is 
expressly  provided  by  the  donor  that  she  should  hold  and 
enjoy  the  land  to  her  "  sole"  and  "separate  "  use  and  free 
from  the  control  of  her  husband.  And  if  there  be  no 
special  trustee  appointed,  equity  will  compel  the  husband 
and  his  privies  to  hold  the  legal  estate  as  trustees  for  the 
separate  use  of  the  wife.1  No  particular  forms  of  expression 
are  required,  but  the  intention  to  exclude  the  husband's 
rights  must  be  clearly  manifested,  and  for  that  purpose  it  is 
advisable  to  append  to  the  habendum  clause  of  the  deed 
the  words  "  to  her  sole  and  separate  use,"  or  others  of  a 
similar  import.2 

§  93.  Restrictions  upon  alienation  of  wife's  separate 
property.  — According  to  the  English  rule  of  equity,  the 
wife  is  so  far  considered  a  feme  sole  that  she  has  the  power 
freely  to  dispose  of  her  separate  property  by  joining  with 
her  trustee  in  the  deed  of  conveyance.3  This  English  rule 
has  been  followed  in  some  of  the  States  of  this  country,4 

1  1  Washb.  on  Real  Prop.  330 ;  Williams  on  Real  Prop.  224 ;  Major  v. 
Lansley,  2  Russ.  &  Mylne,  355;  Porter  v.  Bank  of  Rutland,  19  Vt.  410; 
Stuart  v.  Kissam,  3  Barb.  493 ;  Trenton  Banking  Co.  v.  Woodruff,  2  N.  J.  Eq. 
117;  Cochrane  v.  O' Hern,  4  Watts  &  S.  95;  Heath  v.  Knapp,  4  Barr,  228; 
Shirley  v.  Shirley,  9  Paige,  364;  Blanchard  v.  Blood,  2  Barb.  352;  Fears  v. 
Brooks,  12  Ga.  195;  Steele  v.  Steele.  1  Ired.  Eq.  452;  Knight  v.  Bell,  22  Ala, 
198;  Griffith  v.  Griffith,  5  B.  Mon.  113  ;  Long  o.  White,  5  J.  J.  Marsh.  226. 

2  1  Washb.  on  Real  Prop.  331;  Tritt  v.  Colwell,  31  Pa.  St.  228;  Fears  v. 
Brooks,  12  Ga.  195;  Goodrum  v.  Goodrum,  8  Ired.  Eq.  313;  Welch  v.  Welch, 
14  Ala.  76.     See  Tidd  v.  Lister,  17  Eng.  Law  &  Eq.  560 ;  s.  c,  23  Id.  578. 

3  1  Washb.  on  Real  Prop.  331 ;  Williams  Real  Prop.  224,  Rawle's  note  r 
White  v.  Hulme,  1  Bro.  C.  C.  16;  Brandon  v.  Robinson,  18  Ves.  434;  Tullett 
v.  Armstrong,  1  Beas.  1 ;  Scarborough  v.  Borman,  lb.  34. 

4  In  New  Jersey,  Connecticut,  Kentucky,  Ohio,  North  Carolina,  Alabama, 
Georgia,  Missouri,  Vermont  and  Maryland.     Leaycraft  i>.  Hedden,  4  N.  J.  Eq. 

61 


§  94        ESTATES  OUT  OF  MARITAL  RELATION.    [PART  I. 

while  iii  other  States  the  contrary  rule  has  been  adopted 
that  no  disposition  of  the  wife's  separate  property  can  be 
made  by  her  or  her  husband,  unless  a  power  of  disposition  is 
expressly  granted  to  her.1  In  the  latter  States,  therefore, 
the  wife's  separate  property  is  amply  protected  against  the 
control  or  influence  of  the  husband.  But  in  England,  and 
in  those  States  which  have  adopted  the  English  rule,  he  may 
still  gain  control  of  her  property  by  the  exercise  of  his 
persuasive  powers  over  her.  In  order  to  afford  her  com- 
plete protection,  it  is  permitted  in  those  States  to  impose 
restrictions  upon  her  power  to  alien  the  estate  or  to 
anticipate  the  income  thereof.2 

§  94.  Statutory  changes  in  this  country. — The  fore- 
going paragraphs  present  the  law  as  it  obtains  at  common 
law  and  in  this  country,  in  the  absence  of  remedial  statutes. 
The  common-law  rights  of  the  husband  in  the  wife's  prop- 
erty during  coverture  have  been  entirely  taken  away  in 
some  of  the  States,  the  married  woman  being  Vested,  by 
statutes,  with  all  the  rights  and  capacities,  in  respect  to  her 
property,  of  a  single  woman,  while  in  other  States  they  are 
more  or  less  modified  and  regulated  by  statute.3  In  the 
limited  space,  which  can  be  given  to  the  subject,  it  is  impos- 

551 ;  Imlay  v.  Huntington,  20  Conn.  175;  Fears  v.  Brooks,  12  Ga.  198;  Col- 
lins v.  Larenburg,  19  Ga.  685;  Cooke  v.  Husbands,  11  Md.  492;  C  leman  v. 
Wooley,  10  B.  Mon.  320;  Hardy  v.  Van  Harlingen,  7  Ohb  St.  208;  White- 
sides  v.  Cannon,  23  Mo.  457;  Feary  v.  Booth,  4  Am.  Law  Reg.  (>>-.  s.)  141, 
note;  Frazier  v.  Brownlow,  3  Ired.  Eq.  237.  In  New  York,  the  English  rule 
formerly  prevailed.  Dyett  v.  North  American  Coal  Co.,  20  Wend.  570.  But 
now  the  matter  is  regulated  by  local  statute,  and  the  wife's  power  over  her 
separate  estate  has  been  greatly  restricted.  Rogers  v.  Ludlow,  3  Sandf.  Ch- 
104;  Leggett  v.  Perkins,  2  N.  Y.  297.     See  post,  sect. ,  note. 

1  In  Pennsylvania,  Rhode  Island,  Virginia,  South  Carolina,  Mississippi, 
and  Tennessee.  Wright  v.  Brown,  8  Wright,  204;  Metcalf  v.  Cooke,  2  R.  I. 
355;  Williamson  v.  Beekham,  8  Leigh.  20;  Ewing  r.  Smith,  3  DeSau.  417; 
Doty  v.  Mitchell,  9  Smed.  &  M.  447 ;  Marshall  v.  Stephens,  8  Humph.  159- 
^  ee  post,  sect. ,  note. 

2  1  Washb.  on  Real  Prop.  331;  Williams  on  Real  Prop.  225;  cases  cited 
;n  notes  (11,  12,  13).     See  also  post  ,  so<-i>. 

3  See  1  Washb.  on  Real  Prop.  335-341,  note. 

62 


CH.  VI.]    ESTATES  OUT  OF  MARITAL  RELATION.       §  94 

sible  to  give  the  law  of  each  State  in  detail,  as  it  has  been 
modified  by  statute.  But  the  following  brief  and  general 
statement  may  be  taken  as  reasonably  accurate :  In  Cali- 
fornia, Colorado,  Dakota,  Delaware,  Florida,  Illinois,  Indi- 
ana, Iowa,  Kansas,  Michigan,  Mississippi,  Minnesota,  New 
Jersey,  Nevada,  New  York,  Pennsylvania,  South  Carolina, 
Texas,  and  Wisconsin,  the  common  law  estate  during  cover- 
ture has  been  practically  abolished,  except  that  in  Florida, 
Indiana,  Mississippi,  Minnesota,  New  Jersey,  Nevada  and 
Pennsylvania,  in  order  to  convey  her  property,  the  hus- 
band must  join  in  the  deed,  and  in  Texas  he  is  held  to  have 
the  management  of  her  lands  during  coverture.  In  Ala- 
bama,  Arkansas,  Connecticut,  Maryland,  Missouri,  Rhode 
Island,  Tennessee  and  Vermont,  the  common-law  rights  of 
the  husband  in  his  wife's  property  have  been  more  or  less 
modified,  the  chief  provision  being,  that  his  creditors  can- 
not levy  upon  it  for  his  debts.  In  New  Hampshire  and 
Ohio,  all  lands  acquired  by  the  wife  by  devise,  conveyance, 
or  purchase  with  her  own  funds,  shall  be  her  separate  prop- 
erty free  from  the  common-law  rights  of  the  husband,  but 
she  cannot  convey  her  lands,  without  joining  with  the  hus- 
band. In  California,  Dakota,  Nevada,  and  Texas,  the 
"partnership"  theory  of  marriage,  borrowed  from  the 
civil  or  Roman  law,  and  in  force  in  Louisiana,  has  been 
adopted,  and  a  statute  declares  that  all  lands  purchased  by 
the  husband  or  wife  with  funds  earned  by  their  labor,  shall 
be  the  common  property  of  both,  and  one-half  goes  to  the 
heirs  of  each,  or  it  may  be  conveyed  away  during  his  or  her 
lifetime,  without  the  co-operation  of  the  other.  It  is  evi- 
dent from  this  brief  synopsis,  that  an  accurate  knowledge 
of  the  law  of  married  women,  in  any  given  State,  can  only 
be  had  by  a  careful  study  of  the  statutes  and  decisions  of 
that  State.  A  general  treatise  of  limited  scope  can  only 
give  an  outline  of  the  subject.1 

1  See  1  Washb.  on  Real  Prop.  335-341,  note. 

63 


SECTION   II. 

ESTATE   BY    CUKTESY. 

Section  101.  Definition. 

102.  Marriage. 

103.  Estate  of  inheritance  necessary  in  the  wife. 

104.  Curtesy  in  fees  determinable. 

105.  Curtesy  in  equitable  estates. 

106.  Seisin  in  wife  during  coverture. 

107.  Curte>y  in  reversion. 

108.  Necessity  of  issue. 

109.  I. 'nihility  lor  husband's  debts. 

110.  How  estate  may  he  defeated. 

§  101.  Definition.  —  An  estate  by  the  curtesy  is  a  free- 
hold estate,  limited  by  operation  of  law  to  the  husband  for 
life  in  the  lands  and  tenement  of  the  wife,  in  which  she  was 
seised  of  an  estate  of  inheritance  during  coverture.  The 
estate  by  curtesy  becomes  initiate  upon  the  birth  of  issue, 
born  alive  and  capable  of  inheriting  the  estate,  and  takes 
effect  in  possession  upon  the  death  of  the  wife.1  It  does  not 
exist  in  Louisiana,  California,  Indiana,  Michigan,  South 
Carolina,  Georgia,  Kansas,  and  Texas.2     The  requisites  of 

1  Co.  Lit.  30  a ;  2  Bla.  Com.  126 ;  1  Washb.  on  Real  Prop.  163  ;  Williams 
on  Real  Prop.  227. 

2  1  Washb.  on  Real  Prop.  164 ;  Tong  v.  Marvin,  15  Mich.  73 ;  Portis  v. 
Parker,  22  Texas,  699.  But  it  is  either  recognized  by  the  courts,  or  expressly 
given  by  statute,  in  the  other  States.  Adair  t\  Lott,  3  Hill,  186;  Thurber. 
v.  Townshend,  22  N.  Y.  517 ;  Armstrong  v.  Wilson,  60  111.  226 ;  Reaume  v. 
Chambers,  22  Mo.  36;  Malone  v.  McLaurin,  40  Miss.  162 ;  MeCorry  v.  King's 
Heirs,  3  Humph.  267;  Carr  v.  Givens,  9  Bush,  679;  s.  c,  15  Am.  Rep.  747^ 
In  South  Carolina,  it  has  been  lately  decided  that  the  statute  of  1791  only  abol- 
ished curtesy  in  fees  simple;  and  that  it  still  exists  in  a  fee  conditional. 
Withers  v.  Jenkins,  14  S.  C.  597.  The  position  of  the  South  Carolina  court, 
that  curtesy  in  fees  simple  is  abolished,  is  based  upon  an  erroneous  construc- 
tion of  the  net  of  1791.  That  act  gave  the  husband  the  same  interest  in  the 
lands  and  other  property  of  his  deceased  wife,  as  was  given  to  the  wife  in  her 

64 


CH.  VI.]  ESTATE    BY    CURTESY.  §     104 

the  estate  by  curtesy  are:  1.  Lawful  marriage;  2.  Seisin 
of  wife  during  coverture  ;  3.  Birth  of  a  living  child  in  the 
life  time  of  the  wife;   4.  The  death  of  the  wife. 

§  102.  Marriage.  — The  marriage  must  be  a  lawful  one. 
If  the  marriage  be  void  because  of  some  illegality,  curtesy 
does  not  attach ;  but  if  the  marriage  is  only  voidable,  the 
husband  will  have  curtesy,  unless  it  be  actually  declared 
void  during  the  life  of  the  wife.1  And  in  some  of  the 
States,  a  dissolution  of  the  marriage  by  decree  of  court  at 
the  suit  of  the  wife  for  the  fault  of  the  husband,  will  take 
away  the  husband's  estate  by  curtesy.2 

§  103.  Estate  of  inheritance  necessary  in  the  wife. — 

In  order  that  curtesy  may  attach,  the  estate  of  the  wife 
must  be  a  freehold  of  inheritance,  and  no  form  of  convey- 
ance of  a  common-law  legal  estate  of  inheritance  can  be 
devised  by  which  the  husband  may  be  deprived  of  his 
curtesy  therein.3  But  the  legal  estate,  of  which  the  wife 
may  be  possessed  as  trustee,  is  not  subject  to  the  husband's 
curtesy.4 

§  104.  Curtesy  in   fees    determinable . — In  respect  to 

deceased  husband's  property,  that  is,  he  was  included  in  the  Statute  of  Descent 
as  an  heir  of  the  wife.  The  court  holds  that  the  estate  by  curtesy  was  im- 
pliedly abolished,  whereas  the  proper  construction  is,  that  he  is  put  to  his 
election,  and  cannot  take  both  the  curtesy  and  the  statutory  provision.  This 
construction  is  universally  recognized  and  adopted  in  the  parallel  case  of  the 
widow,  who  is  entitled  to  dower  and  is  also  made  statutory  heir.  She  may 
take  her  dower,  but  cannot  take  both. 

1  1  "Washb.  on  Real  Prop.  165. 

2  This  is  the  law  in  Maine,  Massachusetts,  Vermont,  Connecticut,  New 
York,  Delaware,  Indiana,  Kentucky,  Rhode  Island,  Arkansas,  New  Hamp- 
shire, Missouri,  Minnesota,  Ohio,  New  Jersey,  Illinois,  Maryland.  1  Washb. 
on  Real  Prop.  309-312,  note;  Bishop's  Mar.  &  Div.,  sect.  666;  1  Greenl. 
Cruise,  150. 

3  Mildmay's  Case,  6  Rep.  41 ;  Mullany  v.  Mullany,  4  N.  J.  Eq.  16 ;  Williams 
on  Real  Prop.  328 ;  1  Washb.  on  Real  Prop.  169. 

*  Chew  v.  Commissioners,  5  Riwle,  160.  And  this  is  true,  whether  the 
trust  is  express  or  implied  by  law  from  the  wife's  contract,  entered  into 
before  marriage,  to  sell  the  land.     Welsh  v.  Chandler,  13  B.  Mon.  431. 

5  65 


§    105  ESTATE    BY    CURTESY.  [PART    I. 

the  right  of  curtesy  in  fees  simple  and  fees  tail,  no  question 
can  arise,  as  explained  in  a  preceding  paragraph.  If, 
however,  the  estate  be  a  fee  upon  condition,  upon  limita- 
tion, or  a  conditional  limitation,  some  difficulty  is  experi- 
enced in  determining  what  effect  the  happening  of  the 
condition  or  contingency  would  have  upon  the  husband's 
curtesy.  The  following  may  be  stated  as  the  prevailing 
rule :  If  the  estate  of  the  wife  be  one  upon  condition  or 
upon  limitation,  estates  which  take  effect  and  are  deter- 
mined according  to  the  rules  of  the  common  law,  and  the 
limitation  overtakes  effect  as  common-law  estates,  as  in  the 
case  of  a  remainder  after  ao  estate  upon  limitation,  the 
husband's  curtesy  is  defeated.1  But,  by  a  refinement  of 
distinction,  which  is  difficult  to  comprehend,  if  the  estate 
be  a  fee  determinable  upon  the  happening  of  some  future 
event,  and  the  limitation  over  be  by  way  of  executory 
devise,  or  shifting  use,  or  in  other  words  a  conditional  limi- 
tation, the  estate  by  curtesy  still  exists,  unaffected  by  the 
happening  of  the  contingency.5 

§  105.  Curtesy  in  equitable  estates.  —  It  was  once  held 
that  the  husband  was  not  entitled  to  curtesy  out  of  the 
equitable  estates  of  the  wife.  But  it  is  now  very  generally 
concededthat  he  has  curtesy  in  all  equitable  as  well  as  legal 
estates,  and  the  same  rules  arc  applied  to  the  former,  which 
obtain  in  the  latter.  For  the  foundation  of  the  claim  of 
curtesy,  the  receipt  by  the  wife  of  the  rents  and  profits  is 
a  sufficient  seisin.3     And  this  is  true   even  of  those  cquit- 

1  Co.  Lit.  241,  Butler's  note,  170;  1  Washb.  on  Real  Prop.  167,  168,  170. 

2  Buckworth  v.  Thirkell,  3  B.  &  T*.  652;  Moody  v.  King,  2  Bing.  447: 
Hatfield  v.  Sneden,  54  N.  Y.  285;  Grant  v.  Townshend,  2  Hill,  654;  Evans  v. 
Evans,  9  Pa  St.  190;  Wright  v.  Herron,  6  Rich.  Eq.  406.  See  1  Washb.  on 
Real  Prop.  171,  172 ;  Co.  Lit.  241  a,  Butler's  note,  170 ;  4  Kent's  Com.  33.  See 
post,  sect.  129,  note. 

3  4  Kent's  Com.  31 ;  1  Washb.  on  Real  Prop.  165,  166 ;  Watts  v.  Ball,  1 
P.  Wms.  109;  Morgan  v.  Morgan,  5  Madd.  408;  Sweetapple  v.  Bindon,  2 
Vern.  537,  note  3;  Davis  v.  Mason,  1  Pet.  508;  Houghton  v.  Hapgood,  13 
Pick.  154 ;  Robinson  v.  Codman,  1  Sumn.  128 ;  Dunscomb   v.  Dunsoomb,   1 

66 


CH.  VI.]  ESTATE    BY    CURTESY.  §    106 

able  estates  which  are  granted  to  her  sole  and  separate  use.1 
But  equitable  estates  will  not  be  subject  to  the  right  of 
curtesy,  if  the  intention  of  the  grantor,  to  exclude  the 
husband  from  such  equitable  estate,  is  clearly  manifested  in 
the  deed.2 

§  10(5.  Seisin  in  wife  during  coverture. — Another 
requisite  of  the  estate  by  curtesy  is,  that  the  wife  must  be 
seised  of  the  estate  during  coverture.  The  actual  seisin 
was  required  at  common  law,  but  at  the  present  day,  in  this 
country,  all  that  is  required  is  legal  seisin,  which  is  a  present 
right  to  the  possession .  But  adverse  possession  will  preclude 
the  husband's  right  of  curtesy,  if  the  seisin  is  not  regained 
during  coverture.  In  the  absence  of  such  adverse  posses- 
sion, actual  possession  is  not  required.3  In  England,  in 
case  of  the  descent  of  lands  upon  the  wife,  an  entry  by  the 
husband  during  coverture  is  necessary  to  support  his  right 
to  curtesy.     But  it  is  the  general  rule  in  this  country,  that 

Johns.  508;  Clepper  v.  Livergood,  5  "Watts,  113;  Dubs  v.  Dubs,  31  Pa.  St. 
154 ;  Rawlings  v.  Adams,  7  Md.  54 ;  Forbes  v.  Smith,  5  Ired.  Eq.  369 ;  Withers 
v.  Jenkins,  14  S.  C.  597 ;  Alexander  v.  "Warrance,  17  Mo.  228.  In  several  of 
the  States,  notably,  Alabama,  Kentucky,  Maryland,  Mississippi,  and  Virginia, 
curtesy  is  by  statute  made  to  attach  to  equitable  estates.  1  Greenl.  Cruise, 
157. 

1  Tillinghast  v.  Coggeshall,  7  R.  I.  383;  Nightingale  v.  Hidden,  lb.  115; 
Sartill  v.  Robeson,  2  Jones  Eq.  510;  Carter  v.  Dale,  3  Lea,  710;  31  Am.  Rep. 
660.  But  see  Moore  v.  Webster,  L.  R.  23  Eq.  267;  Appleton  v.  Rowley,  L. 
R.  8  Eq.  139 ;  and  cases  cited  in  note  2. 

2  Carters.  Dale,  3  Lea,  710;  31  Am.  Law  Rep.  660;  Stokes  v.  McKibbin,  13 
Pa.  St.  207;  Cochran  v.  O'Hern,  4  Watts  &  S.  95;  .Rigler  v.  Cloud,  14  Pa.  St. 
361;  Clark  v.  Clark,  24  Barb.  582;  Pool  v.  Blaikie,  53  111.  495;  Hearle  v. 
Greenbank,  3  Atk.  716 ;  Bennett  v.  Davis,  2  P.  Wms.  316 ;  1  Washb.  on  Real 
Prop.  1F.5-169. 

3  4  Kent's  Com.  30  n;  Davis  v.  Mason,  1  Pet.  506;  Jackson  v.  Sellick, 
8  Johns.  262 ;  Den  v.  Demarest,  1  N.  J.  L.  525 ;  Ellsworth  v.  Cook,  8  Paige 
Ch.  640;  Jackson  v.  Johnson,  5  Cow.  74;  Bar  v.  Galloway,  1  McLean,  476; 
Pierce  v.  Wanett,  10  Ired.  446 ;  Mercer  v.  Selden,  1  How.  37 ;  McCorry  v. 
King's  Heirs,  3  Humph.  207 ;  Day  v.  Cochran,  24  Miss.  277  ;  McDaniel  v.  Grace, 
15  Ark.  4G5;  Adams  v.  Logan,  6  Mon.  175;  Neely  v.  Butler,  10  B.  Mon.  48; 
Reaume  v.  Chambers,  22  Mo.  541  ;  Wells  v.  Thompson,  13  Ala.  79:3;  Stine- 
baugh  v.  Wisdom,  13  B.  Mon.  467. 

67 


§    108  ESTATE    BY    CURTESY.  [PART   I. 

actual  entry  is  not  required,1  and  in  Pennsylvania,  Ohio, 
and  Connecticut,  adverse  possession  does  not  necessitate  an 
actual  entry.2  If  the  lands  are  in  possession  of  a  co-tenant 
in  a  tenancy  in  common,  the  wife  is  deemed  sufficiently 
seised  in  order  to  give  the  husband  curtesy,  and  such  would 
also  be  the  case,  where  a  tenant  for  years  or  at  sufferance 
has  possession  by  lease  from  the  wife.  The  tenant  in  such 
a  case  holds  the  actual  seisin  or  possession  as  a  quasi  bailee 
of  the  reversioner.3 

§  107.  Curtesy  in  reversion.  —  But  if  the  estate  of  the 
wife  be  a  reversion  or  a  remainder,  supported  and  preceded 
by  a  particular  freehold  estate,  she  will  not  have  such  a 
present  right  to  the  possession,  as  to  give  her  husband 
curtesy,  unless  the  prior  freehold  is  determined  during 
coverture,  and  this,  too,  though  the  husband  is  the  tenant  of 
the  prior  freehold.4  The  husband  in  such  cases  can  only 
have  curtesy,  when,  during  coverture,  the  particular  free- 
hold is  determined  or  is  merged  in  the  reversion  by  coming 
into  the  same  hands.5 

§  108.  Necessity  of  issue.  —  The  estate  by  curtesy  is  by 
the  theory  of  the  law  only  a  continuance  of  the  wife's 
estate  of  inheritance,  and  is  supposed  to  be  intrusted  to  him 

1  Co.  Lit.  29  a.;  1  "Washb.  on  Real  Prop.  173,  174;  Adair  v.  Lott,  3  Hill, 
182;  Jackson  v.  Johnson,  5  Cow.  74;  Chew  ».  Commissioners!  5  R:iwle,  100, 
Day  v.  Cochrane,  24  Miss.  261;  Stephens  v.  Hume,  25  Mo.  340;  Harvey  c. 
Wichman,  23  lb.  115;   Carr  v.  Grivens,  9  Bush,  679;  s.  c,  15  Am.  Rep.  747. 

*  Stoolfoos  v.  Jenkins,  8  Serg.  &  R.  175;  Bu?h  v.  Bradley,  4  D:t; 
Borland  v.  Marshall,  2  Ohio  St.  308;  Merritt  v.  Home,  5  Ohio  St.  307;  Kline 
v.  Beebe,  6  Conn.  494.     Contra,  Mercer's  Lessee  v.  Selden,  1  How.  154. 

3  De  Grey  v.  Richardson,  3  Atk.  4S0;  Green  v.  Liter,  8  Cranch,  245;  Wass 
v.  Bucknam,  35  Me.  360;  Taylor  v.  Gould,  10  Barb.  388;  Jackson  r.  Johnson ; 
5  Cow.  74;  Carter  v.  Williams,  8  Ired.  Eq.  177:  Powell  v.  Gossora,  IS  B.  Mon. 
179;  Vanarsdall  v.  Fauntleroy,  7  B.  Mon.  401;  Day  r.  Cochrane,  24  Miss. 
261. 

*  Stoddard  v.  Gibbs.l  Sumn.  263 ;  Ferguson  v.  Tweedy,  48  N.  Y.  643  :  Orford 
v.  Benton,  36  N.  H.395;  Shores  v.  Carlo  v,  8  Allen,  426 ;  Hitner  r.  Ege,  23  Pa. 
St  305;  Robertson  v.  Stevens,  1  Ired  Eq.  247 j  Bialone  v.  McLaurin,  40  Miss. 
163;  Planter's  Bank  v.  Davis  31  Ada.  683;  Doe  v.  Rivers,  9  T.  R.  272. 

5  1  Washb.  on  Real  Prop.  175-178;  Doe  v.  Scuddamore,  2  B.  &  P.  294; 
Plunket  v.  Holmes,  1  Lev.  11;  1  Cruise  Dig.  149. 

68 


CH.  VI.]  ESTATE    BY    CURTESY.  §    108 

during  life  for  the  benefit  of  the  wife's  issue.  It  is  therefore 
necessary  by  the  common  law,  that  the  wife  should  have 
issue  born  alive,  who  can  take  the  inheritance  as  heir  to  the 
wife.  A  female  child  in  the  case  of  a  tail  male  would  not 
satisfy  this  requirement.1  His  right  becomes  initiate  upon 
the  birth  of  the  child,  and  attaches  and  vests  in  possession, 
whether  it  was  born  before  or  after  the  acquisition  of  the 
estate  ;  and,  provided  it  was  born  alive,  its  death  at  any 
time  would  not  affect  the  husband's  right  of  curtesy.2  In 
Pennsylvania,  by  statute,  the  birth  of  a  child  is  not  neces- 
sary.3 The  issue  must  not  only  be  born  alive  and  capable 
of  inheriting  the  estate,  but  it  must  also  at  common  law 
have  been  born  during  the  life  time  of  the  mother.  The 
birth  of  the  child  after  her  death,  by  means  of  the  Caesa- 
rian operation,  would  not  give  the  husband  curtesy.4 

§  109.  Liability  for  husband's  debts.  —  As  soon  as  the 
right  becomes  initiate  by  the  birth  of  the  child  as  well  as 
after  it  is  consummate,  it  may  be  subjected  to  the  satisfac- 
tion of  the  husband's  debts  and  can  be  sold  under  a  levy  of 
execution.5  Equity  will  not  interfere  in  behalf  of  the 
wife  or  children.6 

1  Co.  Lit.  29  b;  1  Washb.  on  Real  Prop.  178;  Williams  on  Real  Prop. 
228;  Heath  v.  White,  5  Conn.  228;  Day  v.  Cochrane,  24  Miss.  261. 

2  2  Bla.  Com.  128;  1  Washb.  on  Real  Prop.  179;  Witham  v.  Perkins,  2 
Me.  400;  Comers.  Chamberlin,  6  Allen,  166;  Watson  v.  Watson,  13  Conn. 
83;  Jackson  v.  Johnson,  5  Cow.  74;  Guion  v.  Anderson,  8  Humph.  307.  The 
husband's  right  of  curtesy,  upon  birth  of  a  child  by  him,  takes  precedence  to 
any  claim  by  descent  of  a  son  of  the  wife  by  a  prior  marriage.  Heath  v. 
White,  5  Conn.  236.  The  law  is  different  in  Michigan  by  statute.  Hathorn  v. 
Lyon,  2  Mich.  93. 

3  Williams  on  Real  Prop.  228,  Rawle's  note ;  Dubs  v.  Dubs,  31  Pa.  St. 
154;  Lancaster  Co.  Bank  v.  Stauffer,  19  Pa.  St.  398. 

4  1  Washb.  on  Real  Prop.  179;  Co.  Lit.  29  b;  1  Greenl.  Cruise,  143,  note; 
Marsellis  v.  Thalheimer,  2  Paige  Ch.  42. 

6  Mattocks  v.  Stearns,  9  Vt.  326 ;  Roberts  v.  Whiting,  16  Mass.  186 ; 
Litchfield  v.  Cudworth,  15  Pick.  23;  Watson  v.  Watson,  13  Conn.  83;  Burd 
v.  Dausdale,  2  Binn.  80;  Lancaster  Co.  Bank  v.  Stauffer,  10  Pa.  St.  398;  Van 
Duzer  v.  Van  Duzer,  6  Paige,  366;  Day  v.  Cochrane,  24  Miss.  261 ;  Canbyt?. 
Porter,  12  Ohio,  79.    But  see  Harvey  v.  Wickham,  23  Mo.  117. 

6  Van  Duzer  v.  Van  Duzer,  6  Paige,  366. 

69 


§110  ESTATE    BY    CURTESY.  [PART    I. 

§  110.  How  estate  may  be  defeated. — A  divorce  a  vin- 
culo, as  has  been  seen,  will  defeat  the  husband's  right  of 
curtesy,  where  it  is  granted  for  his  fault.1  It  was  also  the 
rule  at  common  law  that  a  feoffment  in  fee  by  the  husband 
would  destroy  his  tenancy  by  curtesy.  But  although  the 
same  rule  is  now  enforced  in  this  country  in  regard  to 
feoffments,  wherever  they  still  obtain,  and  it  is  not  changed 
by  statute,  yet  the  ordinary  conveyance  is  held  to  transfer 
only  what  the  grantor  has,  and  will  not  work  a  forfeiture 
of  his  actual  estate.2  In  a  preceding  section  it  has  been 
stated  that  in  a  number  of  the  States,  statutes  have  been 
passed,  which  enable  a  married  woman  to  hold  property  as 
free  from  marital  rights,  as  if  she  were  single.  In  New 
York,  where  the  change  was  first  made,  it  has  been  held 
that  the  common-law  right  to  curtesy  still  exists,  but  it  may 
be  defeated  by  the  conveyance  of  the  wife  during  cover- 
ture.3       v—- ^ 


1  See  ante,  sect.  102. 

2  French  v.  Rollins,  21  Me.  372 ;  Flagg  v.  Bean,  25  N.  H.  63 ;  Dennett  v. 
Dennett,  40  N.  H.  505;  McKee  v.  Pfont,  3  Dall.  486;  Munneslvn  v.  Munnes- 
lyn,  2  Brev.  2;  Butterfield  v.  Beall,  3  Ind.  203;  Meramec  v.  Caldwell,  8  B. 
Mon.  32;  Baykin  r.  Rain,  28  Ala.  332;  Miller  ?•.  Miller,  .Mei^s,  481. 

3  Clark  u." Clark,  24  Barb.  581;  Thurberv.  Townsbend,  S2  X.  Y.  517.  But 
it  seems  that  under  the  New  York  statute,  the  tenancy  by  the  curtesy  vests 
only  where  the  land  remains  undisposed  of  by  deed  or  by  will,  A  devise  of 
the  lands  would  therefore  defeat  the  tenancy.  See  Burke  v.  Valentine,  52 
Barb.  412 ;  Scott  v.  Guernsey.  60  Barb.  163  ;  Rider  v.  Hulse,  24  N.  Y.  372. 

70 


section  m. 

DOWER. 

Section  115.  Dower  defined  and  explained. 

116.  In  what  estates  has  she  dower. 

117.  Dower  in  equitable  estates. 

118.  Dower  in  lands  of  trustee. 

119.  Dower  in  mortgage. 

120.  Dower  in  proceeds  of  sale. 

121.  Seisin  required  in  the  husband  during  coverture. 

122.  Continued  —  Defeasible  or  determinable  seisin. 

123.  Duration  of  the  seisin. 

124.  Instantaneous  seisin. 

125.  Marriage  must  be  legal. 

126.  How  dower  may  be  lost  or  barred  by  act  of  the  husband. 

127.  Continued  —  By  wife's  release  during  coverture. 

128.  Continued — By  elopement  and  divorce. 

129.  Continued  —  By  loss  of  husband's  seisin. 

130.  Continued — By  estoppel  in  pais. 

131.  Continued  —  By  statute  of  limitations. 

132.  Continued  —  By  exercise  of  eminent  domain. 

133.  Widow's  quarantine. 

134.  Assignment  ■ —  Two  modes. 

135.  Continued — Of  common  right. 

136.  Dower  against  common  right. 

137.  By  whom  may  dower  be  assigned. 

138.  Remedies  for  recovery  of  dower. 

139.  Demand  necessary. 

140.  Against  whom  and  where  the  action  is  bought. 

141.  Continued  —  Abatement  by  death  of  widow. 

142.  Judgment,  what  it  contains. 

143.  Continued  —  Damages,  when  recoverable. 

144.  Continued  —  Assignment  after  judgment. 

145.  Assignment  —  "Where  two  or  more  widows  claim  dower. 

146.  Decree  of  sum  of  money  in  lieu  of  dower. 

147.  Dower  barred  by  jointure. 

148.  Continued — By  testamentary  provision. 

§  115.  Dower  defined  and  explained.  —  Dower  is  that 
interest  or  estate  which  is  provided  by  the  law  for  the  widow 
out  of  the  real  property  of  the  husband.     At  common  law, 

71 


§    115  DOWER.  [PART   I. 

and  generally  in  this  country,  it  is  an  estate  for  life  in  one- 
third  of  his  lands,  tenements,  and  hereditaments.1  During 
coverture,  her  interest,  though  an  incumbrance,  is  but  an 
inchoate  right,  which  she  can  neither  assign,  release,  nor 
extinguish,  except  by  joining  in  the  deed  of  her  husband, 
as  explained  later  on.  It  cannot  at  this  stage  be  considered 
even  a  chose  in  action ;  and  it  is  not  affected  by  any  adverse 
possession,  although  such  possession  is  sufficient  to  bar  the 
husband's  interest  in  the  land.2  Upon  the  death  of  the 
husband,  the  wife  surviving,  the  right  becomes  consummate  ; 
it  is  then  a  chose  in  action  which  entitles  her  to  have  certain 
of  her  husband's  lands  set  out  to  her.  She  has  not  yet  an 
estate,  simply  i  consummate  right  to  an  estate,  which  she 
can  assign  in  equity,  and  release  at  common  law  to  one  in 
possession,  but  which  was  incapable  of  assignment  at  com- 
mon law,  like  all  other  choses  in  action.3     It  only  becomes 

1  2  Bla.  Com.  180;  Co.  Lit.  30  a;  1  Wnshb.  on  Real  Prop.  187-189;  Moore 
v.  New  York,  8N.  Y.  110;  Reaume  v.  Chambers,  22  Mo.  36.  In  6ome  of  the 
States,  the  widow  has  one-third  in  fee,  instead  of  for  life,  while  in  others  it  is 
enlarged  to  one-half,  but  except  in  respect  to  quantity,  the  estate  has  the  same 
general  qualities  throughout  the  United  States.  See  Burke  v.  Barron,  8  Iowa 
134;  O'Ferrull  v.  Simplot,  4  Iowa,  381;  Lucas  o.  Sawyer,  17  Iowa,  519; 
Sturgis  v.  Ewing,  18  111.  176 ;  Noel  v.  Ewing,  9  Ind.  37  ;  Gaylord  v.  Dodge,  13 
Ind.  47.  In  Louisiana  and  California,  the  widow  has  one-half  of  all  the  com- 
mon property  of  her  husband.  Beard  v.  Knox,  5  Cal.  252.  And,  although 
there  are  statutes  in  a  number  of  the  States  giving  the  widow  an  interest  in 
the  personal,  as  well  as  the  real  property  of  the  husband,  dower  technically 
can  only  be  had  out  of  real  estate  of  inheritance  as  above  stated.  Dow  v. 
Dow,  36  Me.  211;  see  post,  sect.  116. 

2  Durham  v.  Angier,  20  Me.  242 ;  Moore  v.  Frost,  3  N.  H.  127 ;  Gunni- 
son v.  Twitchell,  38  N.  H.  68 ;  Learned  v.  Cutler,  18  Pick.  9 ;  Moore  v.  New 
York,  8  N.  Y.  110;  McArthur  v.  Franklin,  16  Ohio  St.  200.  But  it  is  so 
far  an  interest  in  the  land,  that  if  the  renunciation  of  her  dower  right  has 
been  obtained  by  fraud  of  her  husband  with  knowledge  of  the  purchaser, 
the  wife  may  avoid  the  deed  in  respect  to  her  inchoate  dower  right.  Somar 
v.  Canady,  53  N.  Y.  298;  13  Am.  Rep.  523;  Buzick  v.  Buzick,  44  Iowa,  259; 
24  Am.  Rep.  740;  White  v.  Graves,  107  Mass.  325;  9  Am.  Rep.  38. 

3  Johnson  v.  Shields,  32  Me.  424;  Hoxsie  v.  Ellis,  4  R.  I.  123;  Sheafe  v. 
O'Neil,  9  Mass.  9;  Gooch  v.  Atkins,  14  Mass.  378;  Lund  v.  Woods,  11  Mete, 
566 ;  Croade  v.  Ingraham,  13  Pick.  33 ;  Tompkins  v.  Fonda,  4  Paige  Ch.  448  ; 
Jackson  v.  Vanderheyden,  17  Johns.  167;  Cox  v.  Jagger,  2  Cow.  651 ;  Stewart 
v.  McMartin,  5  Barb.  438 ;  Harrison  v.  "Wood,  1  Dev.  &  B.  Eq.  437 ;  Salt- 

72 


CH.  VI.]  DOWER.  §    115 

an  estate  in  the  lands,  when  it  has  been  set  out  to  her.  The 
act  of  setting  out  the  dower  is  called  the  assignment  of 
dower.  From  this  time  on,  she  has  a  life  estate,  with  all 
the  rights,  incidents,  and  disabilities,  which  pertain  to  that 
class  of  estates.1  In  some  of  the  States,  the  wife  holds  her 
dower  subject  to  the  claims  of  her  husband's  creditors,  but 
as  a  general  rule  her  dower  right  takes  precedence  to  such 
claims.2 

marsh  v.  Smith,  32  Ala.  404 ;  Strong  v.  Bragg,  7  Blackf.  63 ;  Summers  v. 
Babb,  13  111.  483;  Blain  v.  Harrison,  11  111.  384;  Torrey  v.  Minor,  1  Smed.  & 
M.  Ch.  489;  Shield  v.  Batts,  5  J.  J.  Marsh.  12;  Stewart  v.  Chadwick,  8  Iowa, 
463  ;  Brown  v.  Meredith,  2  Keen,  527 ;  Corey  v.  The  People,  45  Barb.  265.  And 
likewise  the  dower  right  before  assignment  cannot  be  sold  under  attachment 
or  execution.  Rausch  v.  Moore,  48  Iowa,  611;  30  Am.  Rep.  412;  Brown  v 
Meredith,  2  Keen,  527;  Gooch  v.  Atkins,  14  Mass.  378;  Green  v.  Putnam,  1 
Barb.  500 ;  Saltmarsh  v.  Smith,  32  Ala.  404.  In  Vermont  and  Connecticut 
she  is  held  to  have  an  estate  in  common  with  the  heirs  from  the  death  of  the 
husband.  Dummerston  v.  Newfane,  37  Vt.  13;  Wooster  v.  Hunt's  i.yman 
Iron  Co.,  38  Conn.  257.  In  Alabama  and  Indiana  she  has  such  an  interest  in 
the  land,  as  that  it  may  be  assigned  before  it  has  been  set  out.  Powell  v. 
Powell,  10  Ala.  900;  Strong  v.  Clem,  12  Ind.  37.  And  even  when  the  dower 
right  before  assignment  cannot  in  law  be  conveyed,  except  by  way  of  release 
to  the  tenant  of  the  freehold,  a  conveyance  or  assignment  to  a  stranger  will  be 
valid  in  equity,  and  the  assignee  may  bring  the  action  for  assignment  in  the 
name  of  the  widow.  Robie  v.  Flanders,  33  N.  H.  524 ;  Lamar  v.  Scott,  4 
Rich.  Eq.  516 ;  Potter  v.  Everitt,  7  Ired.  Eq.  152 ;  Powell  v.  Powell,  10  Ala, 
900. 

1  Windham  v.  Portland,  4  Mass.  384 ;  Jones  v.  Brewer,  1  Pick.  314 ;  Powell 
v.  Monson,  3  Mason,  368 ;  Lawrence  v.  Brown,  5  N.  Y.  394 ;  Andrews  v. 
Andrews,  14  N.  J.  L.  141 ;  Norwood  v.  Marrow,  4  Dev.  &  B.  442;  Sutton  v. 
Burrows,  2  Murph.  79;  Thompson  v.  Stacy,  10  Yerg.  423.  As  soon  as  judg- 
ment has  been  entered  up,  she  may  release  or  transfer  the  estate.  Leavitt  v. 
Lamprey,  13  Pick.  382.  And  when  the  habere  facias  has  been  issued,  she  may 
enter  upon  the  land.  Co.  Lit.  37  b,  n  ;  Parker  v.  Parker,  17  Pick.  236 ;  Evans 
v.  Webb,  4  Yeates,  424.  But  if  the  assignment  is  subsequently  set  aside, 
she  may  be  treated  as  a  disseissor  or  trespasser  from  the  time  of  her  entry.  4 
Kent's  Com.  61  ;  Hildreth  v.  Thompson,  16  Mass.  191 ;  Jackson  v.  O'Donaghy, 
7  Johns.  247 ;  Sharpley  v.  Jones,  5  Harr.  373  ;  McCully  v.  Smith,  2  Bail.  103. 
After  it  is  set  out  to  her,  she  holds  her  dower  land  of  her  husband,  and  not  of 
the  heir  or  tenant.  It  is  not  the  grant  of  the  heir,  and  the  grant  by  the  heir 
of  the  dower  land  after  her  death,  incorporated  in  the  deed  of  assignment, 
is  a  grant  of  the  reversion  and  not  of  a  technical  remainder.  Baker  v.  Baker, 
4  Me.  67;  Conant  v.  Little,  1  Pick.  189;  Adams  v.  Butts,  9  Conn.  79;  Law- 
rence v.  Brown,  5  N.  Y.  394. 

2  When  it  is  stated  that  in  some  of  the  States  the  dower  right  is  subject  to 

73 


§    116  DOWER.  [PART   I. 

§  116.  In  what  estates  has  she  dower.  —  The  widow  has 
dower  in  all  freehold  estates  of  inheritance,  which  her  issue, 
if  any,  could  have  inherited  as  heir  of  the  husband,  and  of 
which  he  was  seised  during  eoverture.  It  therefore  includes 
everything  that  is  comprehended  under  the  terms  lands, 
tenements,  and  hereditaments,  corporeal  and  incorporeal.1 
She  has  no  dower  in  estates  per  aider  vie,  or  for  years, 
except  where  these  estates,  or  certain  of  them,  are  given  by 
statute  the  incidents  and  characteristics  of  freehold  estates 
of  inheritance.2     The  inheritance  must  also  be  a  continuous 

the  claims  of  creditors,  it  is  meant  that  a  judicial  sale  for  debt  will  bar  the 
wife's  dower  right,  and,  it  being  inchoate,  she  cannot  protect  it.  Kirke  v. 
Dean,  2  Binn.  347 ;  Reed  v.  Morrison,  12  Serg.  &R.  18 ;  Lozear  v.  Porter,  87  Pa. 
St  513;  30  Am.  Rep.  380.  But  it  will  not  be  barred  by  tbe  assignment  for 
benefit  of  creditors,  or  by  sale  in  bankruptcy.  Keller  v.  Michael,  2  Yeates 
300;  Eberle  v.  Fisher,  13  Pa.  St.  526;  Lozear  v.  Porter,  87  Pa.  St.  513;  30  Am. 
Rep.  380.  But  the  general  rule  is,  that  it  cannot  in  any  manner  be  barred 
by  a  sale  for  debts.  Stinson  v.  Sumner,  9  Mass.  149;  Griffin  v.  Reece,  1  Hurr. 
508;  Lewft  v.  Coxe,  5  Harr.  403;  Hinchman  v.  Stiles,  10  N.  J.  Eq.  361; 
Coombs  v.  Young,  4  Yerg.  218;  Sisk  v.  Smith,  6  111.  503.  But  if  the  land  is 
under  attachment  before  marriage,  a  sale  of  it  will  defeat  the  wife's  dower. 
Brown  v.  William-.  '■'>!  Me.  403;  Sanford  v.  McLean,  3  Paige,  117. 

1  2  Bla.  Com.  131 ;  Co.  Lit.  40  a ;  1  Washb.  on  Real  Prop.  193-195.  Dower 
may  be  claimed  out  of  rents  and  other  incorporeal  hereditaments,  except 
annuities  not  issuing  out  of  land.  Co.  Lit.  32  a;  2  Bla.  Com.  132;  Aubin  v. 
Daly,  4B  &  Aid.  59;  Chase's  Case,  1  Bland,  227  ;  4  Kent's  Com.  401.  But 
the  incorporeal  hereditament,  like  corporeal  hereditaments,  must  be  an  estate 
of  inheritance.  1  Washb.  on  Real  Prop.  210;  Stoughton  v.  Leigh,  1  Taunt. 
410;  Weir  v.  Tate,  4  Ired.  Eq.  264;  Chase's  Case,  1  Bland,  227.  She  has 
dower  in  the  crops  planted  by  her  husband,  and  growing  at  his  decease.  1 
Washb.  on  Real  Prop.  211 ;  Ralston  v.  Ralston,  3  Greene  (Iowa),  533.  In  Mas- 
sachusetts, she  is  not  dowable  in  wild  lands.  Conner  v.  Shepherd,  15  Muss. 
164.  But  in  the  other  States,  since  the  tenant  for  life  has  a  right  to  clear  wild 
lands,  in  order  to  make  them  available  for  use,  the  widow  is  granted  her  dower 
in  such  land.  4  Kent's  Com.  76 ;  Hastings  v.  Cruckleton,  3  Yeates,  261 ; 
Findlay  v.  Smith,  6  Munf.  134;  Ballantine  v.  Payner,  2  Hayw.  110;  Owen  v. 
Hyde,  6  Yerg.  334 ;  Alexander  v.  Fisher,  7  Ala.  514.  See  ante,  sect.  74.  She 
is  likewise  dowable  in  the  mines,  which  were  opened  and  worked  by  her  hus- 
band. Lenfers  v.  Henke,  73  111.405;  24  Am.  Rep.  263;  Hendrix  c.  Mo  Beth, 
61  Ind.  473;  28  Am.  Rep.  680;  ante,  sect.  75. 

2  Gillis  v.  Brown,  5  Cow.  388;  Spangler  v.  Spangler,  1  Md.  Ch.  86; 
Fisher  v.  Grimes,  1  Smed.  &  M.  Ch.  107;  Ware  v.  Washington,  6  Smed. 
&  M.  737;  Burris  v.  Page,  12  Mo.  358;  1  Washb.  on  Real  Prop.  194, 
195.     But  see  Goodwin  v.  Goodwin,  33  Conn.  314,  which  holds  that  the  widow 

74 


CH.  VI.]  DOWER.  §    116 

and  entire  one.  The  interposition  of  a  freehold  estate 
between  the  husband's  estate  in  possession  and  his  reversion 
or  remainder  in  fee  will  prevent  the  wife's  dower  from 
attaching.  It  can  only  attach  when  the  interposed  freehold 
terminates  during  coverture.1  Nor  can  she  for  the  same 
reason  have  dower  in  lands,  which  her  husband  holds  in 
joint  tenancy,  until  the  tenancy  has  been  terminated  by 
partition  or  by  the  death  of  the  other  tenant.2  But  the 
estate  of  a  tenant  in  common  is  subject  to  dower;  the 
dower  attaches  to  the  husband's  undivided  interest  in  the 
land  before  partition,  and  afterwards  to  the  share  set  out  to 
him.3  Estates  held  by  a  partnership  for  partnership  pur- 
poses are  also  subject  to  dower ;  but  the  dower  is  subordi- 
nate to  the  demands  that  might  be  made  by  partnership 
creditors  against  the  partnership  property.4 

has  no  dower  out  of  an  estate  for  999  3rears,  although  the  statute  converts  this 
leasehold  into  an  estate  of  inheritance.  Concerning  estates  per  aider  vie, 
see  ante,  sect.  61 ;  and  in  respect  to  leaseholds  made  estates  of  inheritance,  see 
post,  sect.  171. 

1  Lewis  Bowie's  Case,  11  Rep.  80;  Crump  v.  Norwood,  7  Taunt.  362; 
Eldridge  v.  Forrestal,  7  Mass.  253;  Brooks  v.  Everett,  13  Allen,  458;  Blood  v. 
Blood,  23  Pick.  80;  Robison  v.  Codman,  1  Sumn.  130;  Fisk  v.  Eastman,  5  N. 
H.  240 ;  Otis  v.  Parshley,  10  N.  H.  403 ;  Dunham  v.  Osborne,  1  Paige,  634 ; 
Durando  v.  Durando,  23  N.  Y.  331;  Gardners.  Greene,  5  R.  I.  104;  Shoe- 
maker v.  Walker,  2  Serg.  &  R.  556 ;  Arnold  v.  Arnold,  8  B.  Mon.  202 ;  Apple  v. 
Apple,  1  Head,  348;  4  Kent's  Com.  39;  1  Washb.  on  Real  Prop.  195.  But 
if  the  interposed  estate  be  one  for  years,  it  will  not  affect  the  dower  right, 
since  the  entire  seisin  is  in  the  husband.  Bates  v.  Bates,  1  Ld.  Raym.  326 ; 
Hitchens  v.  Hitchens,  2  Vern.  403.  According  to  the  early  common  law,  a 
contingent  remainder  would  be  defeated  by  the  coming  together  of  the  rever- 
sion and  the  life  estate  in  one  person.  It  was  then  held  that  the  widow  would 
have  dower,  notwithstanding  the  interposed  contingent  remainder.  Hooker  v. 
Hooker,  Ca.  Temp.  H.  13;  Purefoy  v.  Rogers,  2  Saund.  380.  But  the 
contingent  remainder  cannot  now  be  defeated  by  merger  of  the  life  estate  in  the 
reversion.     1  Washb.  on  Real  Prop.  197  ;  Williams  on  Real  Prop.  281,  282. 

2  1  Washb.  on  Real  Prop.  198 ;  Co.  Lit.  37  b ;  Duncomb  v.  Duncomb,  3 
Lev.  437  ;  Maybury  v.  Brien,  15  Pet.  21.     See  post,  sects.  237-239. 

3  1  Washb.  on  Real  Prop.  199;  Reynard  v.  Spence,  4  Beav.  103;  Potter  v. 
Wheeler,  13  Mass.  504;  Totten  v.  Stuyvesant,  3  Edw.  Ch.  500;  Wilkinson  v. 
Parish,  3  Paige,  653;  Lloyd  v.  Conover,  25  N.  J.  L.  48;  Warren  v.  Twilley, 
10  Md.  39 ;  Davis  v.  Bartholomew,  3  Ind.  485 ;  Weaver  v.  Gregg,  6  Ohio  St. 
547 ;  Lee  v.  Lindell,  22  Mo.  202. 

*  Burnside  v.  Merrick,  4  Mete.  537;  Dver  v.  Clark,  5  Mete.  562;  Smith  v. 

75 


§    117  DOWER.  [PART   I. 

§  117.  Dower  in  equitable  estates.  —  According  to  the 
early  English  law  there  was  no  dower  in  equitable  estates, 
and  the  Statute  of  Uses  expressly  excepted  the  estates 
executed  by  it  from  the  claims  of  dower.1  But  at  present, 
in  England,  and  generally  in  this  country,  the  widow  is 
entitled  to  dower  in  all  classes  of  equitable,  as  well  as 
legal,  estates.2  In  the  same  manner  now,  she  has  dower  in 
the  husband's  equity  of  redemption,  which  gives  her  the 
right  of  one,  who  is  interested  in  the  mortgaged  property, 
subject  to  the  mortgage.3 

Jackson,  2  Edw.  Ch.  28 ;  Coster  v.  Clark,  3  Edw.  Ch.  428 ;  Hawley  v.  James, 
5  Paige,  451;  Goodburn  v.  Stevens,  1  Md.  Ch.  437;  Pierce  v.  Trigg,  10 
Leigh,  406;  Richardson  v.  Wyatt,  2Desau.  471 ;  Loubatv.  Nourse,  5  Fla.  350; 
Sumner  v.  Hampson,  8  Harr.  328;  Woolridge  v.  Williams,  3  How.  (Miss.) 
372;  Hale  v.  Plummer,  6  Ind.  121;  Bopp  v.  Fox,  63  111.  540;  Duhring  v. 
Duhring,  20  Mo.  174.  But  in  order  that  the  claims  of  the  creditors  may  take 
precedence  of  the  widow's  dower  in  respect  to  the  land  held  by  two  or  more, 
the  land  must  be  in  truth  the  property  of  the  partnership.  The  character 
of  their  joint  estate  is  determined  entirely  by  their  intention,  and  it  is  pos- 
sible for  partners  to  hold  real  estate  as  tenants  in  common,  without  its 
becoming  partnership  property.  In  such  a  case,  the  widow  takes  her  dower 
free  from  the  claims  of  creditors.  Wheatley  v.  Calhoun,  12  Leigh,  264; 
Markham  v.  Merrett,  8  How.  (Miss.)  407  :  Hale  v.  Plummer,  6  Ind.  121. 

1  1  Washb.  on  Real  Prop.  202,  203 ;  4  Kent's  Com.  43 ;  1  Spence  Eq.  Jur. 
501 ;  Dixon  v.  Saville,  1  Bro.  C.  C.  326;  D'Arcy  v.  Blake.  2  Sch.  &  Lef.  387; 
Maybury  v.  Brien,  15  Pet.  38;  Hamlin  v.  Hamlin,  19  Me.  141.  See  post 
sect.  — . 

2  Hawley  v.  James,  5  Paige,  318;  Dubs  v.  Dubs,  31  Pa.  St.  151;  Shoe- 
maker v.  Walker,  2  Serg.  &  R.  554;  Bowie  v.  Berry,  1  Md.  Ch.  452;  Miller 
v.  Stump,  3  Gill,  304 ;  Rowton  v.  Rowton.  1  Hen.  &  M.  92 ;  Thompson  v. 
Thompson,  1  Jones  (X.  C.)  Eq.  430;  Dawson  v.  Morton,  6  Dana,  471;  Rob- 
inson v.  Miller,  1  B.  Mon.  93;  Gully  v.  Ray,  18  Ky.  113;  Barnes  v.  G.iy,  7 
Iowa,  26;  Smiley  v.  Wright,  2  Ohio,  512;  Gillespie  v.  Somerville,  3  Stew.  & 
P.  447;  Davenport  v.  Farrar,  2  111.  314;  Atkins  v.  Merrill,  39  111.  62. 
Contra,  Hamlin  v.  Hamlin,  19  Me.  141 ;  Stelle  v.  Carroll,  12  Pet  201.  In 
Iowa,  a  widow  is  not  dowable  in  lands  held  by  her  husband  under  a  pre-  ' 
emption  right.  Bowers  v.  Keesecker,  14  Iowa,  301 ;  but  in  several  of  the 
States  it  has  been  held  that  the  widow  has  dower  in  lands  which  her  husband 
had  contracted  to  purchase,  but  he  di  d  before  the  deed  was  delivered. 
Church  v.  Church,  3  Sandf.  Ch.  434;  Smiley  v.  Wright,  2  Ohio,  512;  Robin- 
son v.  Miller,  1  B.  Mon.  93  ;  Davenport  v.  Farrar,  2  111.  314;  Reed  r.  Whitney, 
7  Gray,  533;  Lobdell  v.  Hayes,  4  Allen,  187.  In  some  of  th3  States  the  old 
English  rule  still  prevails,  that  dower  cannot  be  had  in  equitable  estates. 
See  cases  cited  contra. 

8  Smith  v.  Eustis,  7  Me.  41 ;  Young  v.  Tarbeli,  37  Me.  509;  Moore  v.  Esty, 
7li 


CH.  VI.]  DOWER.  §    119 

§  118.  Dower  in  lands  of  trustee.  —  The  wife  has  no 
dower  in  lands  which  her  husband  holds  as  trustee,  except 
so  far  as  he  may  at  the  same  time  have  an  equitable  inter- 
est therein.  And  this  rule  is  applied  to  every  kind  of 
trust,  whether  express  or  implied,  as  for  example,  where 
the  husband,  before  marriage,  has  entered  into  a  contract 
for  the  sale  of  the  land.1 

§  119.  Dower  in  mortgage. — The  mortgagee's  wife 
has  no  dower  in  the  mortgaged  premises  until  foreclosure. 

6  N.  H.  479;  Eaton  v.  Simonds,  14  Pick.  98;  Fay  v.  Cheney,  14  Pick.  399; 
Farwell  v.  Cotting,  8  Allen,  211 ;  Hastings  v.  Stevens,  29  N.  Y.  564;  Savage 
v.  Dooley,  28  Conn.  411;  Hitchcock  v.  Harrington,  6  Johns.  290;  Jackson 
v.  Dewitt,  6  Cow.  316;  Collins  v.  Torry,  7  Johns.  278  ;  Montgomery  v.  Bruere, 
5  N.  J.  L.  265;  Thompson  v.  Boyd,  1  N.  J.  Eq.  58;  Stopplebein  v.  Shulte, 

1  Hill  (S.  C.)  200;  Heth  v.  Cocke,  1  Rand.  344;  Mclver  v.  Cherry,  8  Humph. 
713;  McArthur  v.  Franklin,  15  Ohio  St.  508;  s.*.,  16  lb.  193;  Whitehead  v. 
Middleton,  2  How.  (Miss.)  692;  Taylor  v.  Fowler,  18  Ohio,  567;  Taylor  v. 
McCrackin,  2  Blackf.  262 ;  Mayburgu.  Brien,  15  Pet.  38.  If  the  mortgage  is 
foreclosed,  her  right  of  dower  is  defeated.  Stow  v.  Tifft,  15  Johns.  458; 
Frost  v.  Peacock,  4  Edw.  Ch.  678;  Reed  v.  Morrison,  12  Serg.  &  R.  18.  On 
the  other  hand,  if  the  mortgage  is  satisfied  by  one  who  is  under  a  primary 
liability  to  pay  it  off,  the  dower  right  attaches  to  the  property  free  from  the 
mortgage ;  but  if  the  heir  or  purchaser  pays  the  mortgage  to  prevent  fore- 
closure, in  order  that  the  widow  may  claim  a  proportionate  benefit  from  the 
satisfaction  of  the  mortgage,  she  must  contribute  her  share  towards  the  ex- 
penses. Hatch  v.  Palmer,  68  Me.  292;  Simonton  v.  Gray,  34  Me.  50;  Hinds 
v.  Ballou,  44  N.  H.  619 ;  Ballard  v  Bowers,  10  N.  H.  500 ;  McCade  v.  Swap,  14 
Allen,  118;  Toomey  v.  McLean,  105  Mass.  122;  Wedge  v.  Moore,  6  Cush.  8; 
Collins  v.  Torrey,  7  Johns.  278;  Coates  v.  Cheever,  1  Cow.  400;  Hitchcock  v. 
Harrington,  6  Johns.  290 ;  Mathewson  v.  Smith,  1  R.  I.  22 ;  Klinck  v.  Keckley, 

2  Hill  Ch.  250;  Carter  v.  Goodin,  3  Ohio  St.  75;  Bank  of  Commerce  v. 
Owens,  31  Md.  320 ;  1  Am.  Rep.  60.  See  post,  sect.  Ill,  ch.  X.Where  the  dower 
right  is  subject  to  the  mortgage,  and  the  mortgagee  is  in  possession,  the 
action  for  dower  cannot  be  instituted  until  the  mortgage  has  been  re- 
deemed. A  suit  for  redemption  must  precede  the  assignment  of  dower. 
Smith  v.  Eustis,  7  Me.  41 ;  Richardson  v.  Skolfield,  45  Me.  386 ;  Cass  v. 
Martin,  6  N.  H.  25;  Van  Dyne  r.Thayer,  14  Wend.  233. 

1  4  Kent's  Com.  43,  46 ;  Coster  v.  Clarke,  4  Edw.  Ch.  428 ;  Prescott  v. 
Walker,  16  N.  H.  343 ;  Hopkinson  v.  Dumas,  42  N.  H.  303  ;  Howell  v.  Mon- 
son,  3  Mass.  364 ;  Brooks  v.  Everett,  13  Allen,  458 ;  Dean  v.  Mitchell,  4  J.  J. 
Marsh.  457 ;  Cooper  v.  Whitney,  3  Hill,  97 ;  Cowman  v.  Hall,  8  Gill  &  J. 
398;  Bartlettu  Gouge,  5  B.  Mon.  152;  Robison  v.  Codman,  1  Sumn.  129. 

77 


§    121  DOWER.  [PART    I. 

This  is  true  both  in  law  and  equity,  under  the  common  law, 
as  well  as  the  modern  lien,  theory  of  mortgages.1 

§  120.  Dower  in  proceeds  of  sale. — Whenever  it  is 
necessary  for  the  settlement  of  varied  interests  in  lands,  of 
which  she  is  dowable,  that  they  should  be  sold,  her  dower 
right  will  follow  and  attach  to  the  proceeds  of  the  sale,  to 
which  her  husband  would  have  been  entitled.  This  is  gen- 
erally true,  for  whatever  cause  the  land  might  have  been 
sold.2 

§  121.  Seisin  required  in  the  husband  during  cover- 
ture.—  In  order  that  the  dower  can  attach,  the  husband 
must  be  seised  of  an  estate  of  inheritance  during  coverture. 
But  for  this  purpose  it  is  not  necessary  that  the  husband 
should  have  the  actual  corporeal  seisin.  Seisin  1n  law,  with 
a  present  right  to  actual  seisin  would  be  sufficient."  But 
disseisin,  resulting  from  adverse  possession  or  any  other 
cause  beginning  before,  and  continuing  during,  coverture 
will  prevent  dower  from  attaching.  The  dower  can  only 
take  effect  when  the  seisin  has  been  recovered  by  the  hus- 
band  during  coverture:4     A  mere  right  of  entry,  as  in  the 

1  4  Kent's  Com.  43 ;  1  Washb.  on  Real  Prop.  204 ;  Foster  v.  Dwinel,  49 
Me.  44  ;  Crittenden  v.  Johnson,  6  Eng.  (Ark.)  44. 

2  Jennison  v.  Hapgood,  14  Pick.  345;  Van  Vronker  r.  Eastman,  7  Mete. 
157;  Hawley  v.  Bradford,  9  Paige,  200;  Titus  v  Xeilson,  5  Johns.  Ch. 
452;  Church  v.  Church,  3  Sandf.  Ch.  434;  Smith  v.  Jackson,  3  Edw.  Ch.  28; 
Queen  Anne's  Co.  v.  Pratt,  10  Md.  3;  Bank  of  Commerce  v.  Owens,  31  Md. 
320;  s.  c,  1  Am.  Rep.  60;  Keith  v.  Trapier,  1  Bailey  Eq.  63;  Pifer  v.  Ward, 
8  Blackf.  252;  Hartshorne  v.  Hartshorne,  2  N.  J.  Eq.  349;  Nazereth  Inst.  v. 
Lowe,  1  B.  Mon  257 ;  Willett  v.  Beatty,  12  B.  Mon.  172  ;  Crane  v.  Palmer,  8 
Blackf.  120;  Bearers  v.  Smith,  11  Ala.  33;  Chaney  v.  Chaney,  38  Ala.  35; 
Shaeffer  v.  Ward,  5  111.  511;  Bonner  v.  Peterson,  44  111.  253;  Barnes  v. 
Gay,  7  Iowa,  26;  Thompson  v.  Cochran,  7  Humph.  72;  Williams  v.  Woods, 
Humph.  408.  But  see  Newhall  v.  Five  Cents  Savings  Bank.  101  Miss.  428; 
3  Am.  Rep.  387. 

3  2  Bla.  Com.  129, 131 ;  Co.  Lit.  31  a;  Mann  v.  Edson,  39  Me.  25;  At  wood 
v.  Atwood,  22  Pick.  233;  Dunham  v.  Osborne,  1  Paige,  635;  Thompson  v. 
Thompson,  10  Ired.  133. 

*  1  Washb.  on  Real  Prop.  216;  Small  v.  Proctor,  15  Mass.  495  ;  Thompson 
v.  Thompson,  1  Jones  (N.  C),  431. 

78 


CH.  VI.]  DOWER.  §    123 

case  of  the  breach  of  the  condition  in  an  estate  upon 
condition,  is  not  sufficient.1 

§  122.  Continued — Defeasible  or  determinable  seisin. — 

Possession  by  the  husband  of  the  premises  is  prima  facie 
evidence  of  lawful  seisin,  although  it  may  be  defeasible. 
As  long  as  possession  is  retained  and  except  as  against  the 
true  owner,  the  widow  is  entitled  to  dower  in  the  same 
manner  as  if  the  seisin  had  been  lawful  and  indefeasible. 
And  the  rule  is  the  same  with  qualified  or  determinable 
fees.  The  widow's  dower  attaches,  and  is  destroyed  only 
by  the  determination  of  the  fee  in  the  hands  of  the  hus- 
band or  his  assigns.2  Nor,  in  the  case  of  an  unlawful  or 
defeasible  seisin,  can  the  wife's  claim  for  dower  be  resisted 
by  the  claim  of  the  husband's  grantee  that  he  had  no  lawful 
seisin,  unless  the  same  defence  could  be  raised  by  the  same 
parties  against  the  husband.3 

§  123.  Duration  of  tbe  seisin.  —  No  length  of  time  is 
required  for  the  seisin  to  be  in  the  husband,  in  order  that 
the  wife's  right  of  dowery  may  attach,  provided  it  is  in  him 

1  Thompson  v.  Thompson,  1  Jones  (N.  C),  431 ;  1  Washb.  on  Real  Prop. 
216. 

*  1  Washb.  on  Eeal  Prop.  218;  Co.  Lit.  241,  note  4;  Lewis  v.  Meserve,  61 
Me.  374;  Mann  v.  Edson,  39  Me.  25;  Knight  v.  Mains,  12  Me.  41;  Moore  v. 
Esty,  5  N.  II.  479;  Carpenter  v.  Weeks,  2  Hill,  341;  Griggs  v.  Smith,  12  N.  J. 
L.  22;  Jackson  ».  Kip,  8  N.  J.  L.  241;  Pveid  v.  Stevenson,  3  Rich.  L.  66; 
Forrest  v.  Tremmell,  1  Bailey,  77;  Thompson  v.  Thompson,  1  Jones  (N.  C), 
431 ;  Torrence  v.  Carbey,  27  Miss.  697 ;  Firestone  v.  Firestone,  2  Ohio  St. 
415. 

3  Kimball  v.  Kimball,  2  Me.  226 ;  Bolster  v.  Cushman,  34  Me.  428 ;  Hitch- 
cock v.  Carpenter,  9  Johns.  344;  Bancroft  v.  White,  1  Caines,  185;  Ward 
v.  Fuller,  15  Pick.  185;  Osterhout  v.  Shoemaker,  3  Hill,  419;  Hitchcock  v. 
Harrington,  6  Johns.  290;  Hale  v.  Munn,  4  Gray,  132;  Bowne  v.  Potter,  17 
Wend.  164 ;  Thompson  v.  Boyd,  2  N.  J.  L.  543 ;  Moore  v.  Esty,  5  N.  H.  479  ; 
Gammon  v.  Freeman,  31.  Me.  243;  Wedgo  v.  Moore,  6  Cush.  8;  P  ledger  v 
Ellerbe,  6  Rich.  L.  2GG  ;  Gale  v.  Price,  5  Rich.  525;  Griffith  v.  Griffith,  5  Harr. 
5;  Montgomery  v.  Bruere,  5  N.  J.  L.  265;  Hugley  v.  Gregg,  4  Dana,  68;  May 
v.  Tillman,  1  Mich.  262;  Crittenden  v.  Woodruff,  6  Eng.  (Ark.)  82;  Taylor's 
Case,  9  Johns.  293 ;  Douglas  v.  Dickson,  11  Rich.  L.  417  ;  Stimpson  v.  Thomas- 
ton  Bk.,  28  Me.  259. 

70 


§    124  DOWER.  [part   I. 

for  his  own  use  and  benefit.     The  vesting  of  the  seisin  in 
law  in  him  for  an  instant  of  time  is  sufficient.1 

§  124.  Instantaneous  seisin. — But  if  the  seisin  in  the 
husband  is  instantaneous,  and  it  was  not  intended  that  he 
should  acquire  the  beneficial  interest  therein,  and  he  serves 
only  as  a  means  of  passing  the  seisin  to  another,  the  wife  will 
not  be  entitled  to  dower.  Not  the  duration,  but  the  character 
and  purposes,  of  the  seisin  determine  the  wife's  right  of  dower 
therein.  It,  therefore,  docs  not  matter  Avhcther  the  trans- 
actions, which  effect  a  conveyance  of  the  seisin  through  the 
husband,  are  instantaneous,  or  are  separate  in  point  of 
time  of  execution,  provided  the  subsequent  conveyance  out 
of  the  husband  is  in  pursuance  of  an  agreement  forming  a 
part  of  the  original  transaction  ;  in  both  cases  the  Avife  will 
not  have  dower.2  The  most  common  instance  of  instan- 
taneous seisin,  without  attachment  of  dower  thereto,  is  a 
conveyance;  of  lands  to  the  husband  with  a  mortgage  for 
purchase-money  to  the  grantor,  executed  at  the  same  time, 
or  subsequently  in  pursuance  of  a  contemporaneous  agree- 
ment.3 

1  2  Bla.  Com.  132;  1  Washb.  on  Real  Prop.  218,  210;  Broughtou  v.  Ran- 
dall, Cro.  Eliz.  503;  Gage  /•.  Ward,  25  Mo.  101  ;  McCauley  o.  Grimes,  2  Gill 
&  J.  318;  Douglass  v.  Dickson,  11  Rich.  L.  417;  McClure  v.  Harris,  12  B. 
Mon.  261. 

2  2  Bla.  Com.  132;  1  Washb.  on  Real  Prop.  219,  223;  Maybury  v.  Brien, 
15  Pet.  39;  Gage  v.  Ward.  25  Me.  101 ;  Moore  v.  Rollins,  45  Mo.  491;  Hazel- 
ton  v.  Lesure,  9  Allen,  24;  Chirk  v.  Munroe,  14  Mass.  351  ;  King  v.  Stetson, 
11  Allen,  408;  Bullard  v.  Bowers,  10  N.  H.  500;  Hinds  v.  Ballou,  44  N.  H. 
620;  Stow  v.  Tifft,  15  Johns.  4G2;  Kittle  v.  Van  Dyck,  1  Sandf.  Ch.  76;  Mc- 
Cauley v.  Grimes,  2  Gill  &  J.  318;  Wooldridge  v.  Wilkins,  3  How.  (Miss.) 
3G9;  Mills  v.  Van  Yoorhis,   23  Barb.  135;  Griggs  v.  Smith,  12  N.  J.  L.  22 
Wheatley  v.   Calhoun,   12  Leigh,   262;  Reed  v.  Morrison,  12  Serg.  &  R.  18 
Dimond  v.  Billingslea,  2  Har.  &  G.  264;  Klinck  v.  Keckeley,  2  Hill  Ch.  250 
Bo3'nton  v.  Sawyer,  35  Ala.  497;  Stevens  v.  Smith,  4  J.  J.  Marsh.  64:  Gully 
v.  Ray,  18  B.  Mon.  107;  Stephens  v.  Sherrod,  6  Texas,  297;  Lassen  v.  Vance, 
8  Cal.  274. 

3  Bullard  v.  Bowers,  ION.  H.  500;  Moore  v.  Rollins,  45  Me,  493;  Young 
v.  Tarbcll,  37  Me.  509;  Strong  o.  Converse,  8  Allen,  559;  Holbrook  ;-.  Fin- 
ney, 4  Mass.  566 ;  Hinds  r.  Ballou,  44  N.  H.  620;  Stow  v.  Tifft,  15  Johns.  458  ; 
Mills  v.  Van  Voorhis,  23  Barb.  125;  Reed  v.  Morrison,   12  Serg.  &  R.  18; 

80 


CH.  VI.]  DOWER.  §    126 

§  125.  Marriage  must  be  legal.  —  Like  estates  by  the 
curtesy,  the  wife  has  dower  only  when  the  marriage  is  a 
legal  one.  Tf  the  marriage  is  absolutely  void,  she  has  no 
claim  for  dower  ;  but  if  it  is  only  voidable,  she  has  dower, 
unless  the  marriage  has  been  declared  void  during  the  life- 
time  of  the  husband.1 

§  126.  How  dower  may  be  lost  or  barred  —  By  act  of 
tbe  busband.  —  At  common  law  the  husband  could  not,  by 
any  act  during  coverture,  defeat  the  wife's  right  of  dower, 
or  prevent  its  attachment  to  the  property  by  having  inserted 
in  the  deed  to  himself  a  clause,  to  the  effect  that  the  land 
should  be  held  by  him  free  from  the  claim  of  dower.2  But 
an  exception  was  made  in  equity  in  respect  to  the  equitable 
interest  the  husband,  as  vendee  under  the  theory  of  implied 
trusts,  acquires  in  the  land  under  the  contract  of  sale,  and 
before  the  delivery  of  the  deed  ;  whereby  a  release  of  his 
right  to  specific  performance  will  bar  her  right  of  dower 
therein.3     And  in  a  number  of  the  States  it  is  now  provided 

Bogie  v.  Rutledge,  1  Bay,  312 ;  Henagan  v.  Harllee,  10  Rich.  Eq.  285 ;  Chase's 
Case,  1  Bland,  206;  McOlure  v.  Harris,  12  B.  Mon.  261;  Klinck  v.  Keckeley,  2 
Hill  Ch.  250.  And  in  the  same  manner,  in  those  States  where  the  vendor's 
lien  for  the  purchase-money  is  recognized,  the  widow  of  the  purchaser  takes 
her  dower  subject  to  the  lien.  Hugunin  v.  Cochrane,  51  111.  302 ;  2  Am. 
Rep.  303;  Warner  v.  Van  Alstyne,  3  Pai  re,  513;  Ellicott  v.  Welch,  2 
Bland,  242;  Miller  v.  Stump,  3  Gill,  304;  Barnes  v.  Gay,  7  Iowa,  26;  Mc- 
Clure  v.  Harris,  12  B.  Mon.  261 ;  Crane  v.  Palmer,  8  Blackf.  120;  Thompson 
v.  Cochrane,  7  Humph.  72. 

1  2  Bla.  Com.  130;  Co.  Lit.  33  a;  Bishop's  Mar.  &  Div.,  sect.  177.  See 
Jenkins  v.  Jenkins,  2  Dana,  102;  Donnelly  v.  Donnelly,  8  B.  Mon.  113;  Hig- 
gins  v.  Breen,  9  Mo  497. 

2  1  Washb.  on  Real  Prop.  244,  255 ;  Swaine  v.  Perine,  5  Johns.  Ch.  482 ; 
Norwood  v.  Marrow,  4  Dev.  &  B.  442 ;  Runke  v.  Hanna,  6  Ind.  20.  And  not 
even  will  the  destruction  of  the  deed  before  recording  defeat  the  wife's  dower 
in  the  estate,  as  against  those  who  have  notice.  Johnson  v.  Miller,  40  Ind. 
376;  17  Am.  Rep.  699. 

3  Herron  v.  Williamson,  Litt.  Sel.  Cas.  250;  1  Washb.  on  Real  Prop.  224, 
225.  And  this  is  also  the  case,  where  the  husband  causes  the  deed  to  be  made 
to  a  third  party  instead  of  himself.  Lobdell  v.  Hayes,  4  Allen,  187;  Steele  v. 
Magie,  48  111.  3%;  Heed  v.  Ford,  16  B.  Mon.  114;  Gully  v.  Ray,  18  B.  Mon. 
107 ;  Welsh  v.  Buckings,  9  Ohio  St.  331 ;  Blakely  v.  Ferguson*  20  Ark.  547. 

6  81 


§   127  DOWER.  [part  I. 

by  statute  that  the  widow  shall  be  dowable  only  in  the 
lands  of  which  her  husband  dies  seised.  Under  these 
statutes  a  bona  fide  conveyance  by  the  husband  during 
coverture  will  defeat  his  wife's  dower,  as  effectually,  as 
under  similar  statutes  the  wife  may  by  conveyance  during 
coverture  defeat  the  husband's  right  of  curtesy.1 

§  127.  Continued  —  By  wife's  release  during  cover- 
ture.—  The  wife  has,  however,  always  had  the  power  to 
bar  her  right  of  dower  by  joining  with  her  husband  in  the 
conveyance  of  the  land.  Formerly,  in  England,  it  was 
barred  by  means  of  fines  and  recoveries.2  But  now,  in 
England,  and  in  this  country  generally,  it  is  regulated  by 
statute,  and  by  joining  in  the  deed  of  the  husband  in  the 
manner  prescribed  by  statute,  she  may  release  her  dower. 
The  requisites  of  the  deed  and  of  her  acknowledgment  of  its 
execution  vary  with  the  terms  of  each  statute.3     But  what- 

But  if  the  contract  of  sale  has  been  performed  \>\  the  husband,  and  nothing 
more  is  to  be  done  than  to  execute  and  deliver  the  deed,  and  the-  husband  then 
dies,  as  has  been  already  stated,  the  widow  has  dower  in  the  premises,  and  can 
enforce  it  against  the  vendor.     See  ante,  sect.  117,  note. 

1  Jenny  v.  Jenny,  24  Vt.  324  ;  McGee  v.  McGee,  4  Ired.  105;  Brewer  v. 
Connell,  11  Humph"  500;  1  Washb.  on  Real  Prop.  268,  note. 

*  1  Washb.  on  Real  Prop.  245 ;  2  Bla.  Com.  137. 

»  Williams  on  Real  Prop.  230,  452;  1  Washb.  on  Real  Prop.  245,  249- 
The  wife  must  be  of  age.  Adams  v.  Palmer,  51  Me.  488;  Cunningham  r. 
Knight,  1  Barb.  399;  Priest  v.  Cumraings,  16  Wend.  617;  s.  c,  20  Wend. 
338 ;  Thomas  v.  Gammel,  6  Leigh,  9 ;  Jones  ».  Todd,  2  J.  J.  Marsh.  359 ; 
Cason  v.  Hubbard,  38  Miss.  46;  Lyon  v.  Kain,  30  111.  370;  Hoyt  v.  Swar,  53 
111.  139;  Hughes  v.  Watson,  10  Ohio,  127.  Generally  she  must  renounce  the 
dower  in  the  same  deed  in  which  her  husband  conveys  the  land.  Shaw  v. 
Russ,  14  Me.  432;  Powell  v.  Monson,  2  Mass.  353;  Ulp  v.  Campbell,  19  Pa. 
St.  361;  Davis  v.  Bartholomew,  3  Ind.  485;  Williams  v.  Robson,  6  Ohio  St. 
514 ;  Moore  v.  Tisdale,  5  B.  Mon.  352.  Execution  of  the  deed  by  the  husband's 
attorney,  with  the  wife,  is  sufficient.  Fowler  v.  Shearer,  7  Mass.  14  ;  Glenn  v. 
Bank  of  United  States,  8  Ohio,  72.  The  deed  of  renunciation  must  also  be 
sealed.  Manning  v.  Laboree,  33  Me.  343  ;  Keeler  v.  Tatnell,  3  N.  J.  62.  And 
where  the  defect  in  the  acknowledgment  of  the  renunciation  of  dower  does 
not  appear  upon  the  defcd,  the  deed  cannot  be  avoided  for  that  purpose,  ai'ter 
the  land  has  passed  to  a  subsequent  purchaser  without  notice.  Shivers  v. 
Simmons.  64  Miss.  530;  23  Am.  Rev.  372.  So,  also,  whore  the  renunciation 
has  been  obtained  through  the  fraud  or  undue  influence  of  the  husband,  it 

82 


CH.  VI.]  DOWER.  §    128 

ever  might  be  the  statutory  requirements,  they  must  be 
strictly  complied  with,  otherwise  the  dower  still  exists.1 
And  since  the  dower  is  extinguished  by  a  release  in  con- 
junction with  the  husband's  deed,  and  operates  as  an 
estoppel  rather  than  as  a  grant,  the  dower  is  only  extin- 
guished as  against  those  who  claim  the  land  under  the 
deed.  If,  therefore,  the  deed  is  void  for  some  cause, 
whether  it  be  fraud,  accident,  or  mistake,  as  where  the 
husband's  act  is  void  as  against  his  creditors,  her  dower 
right  would  be  revived  and  could  be  enforced  against  all 
other  parties.2  But  the  wife  can  only  release  her  dower  to 
her  husband's  grantee.  She  cannot  by  any  independent 
act  release  her  right  during  coverture  to  a  stranger  laying 
claim  to  the  land,  or  to  her  husband.3 

§    128.  Continued  —  By  elopement  and  divorce.  —  Un- 

cannot  be  avoided,  unless  the  purchaser  had  actual  or  constructive  notice  of 
it.  White  v.  Graves,  107  Mass.  325;  9  Am.  Rep.  38;  Singer  Mfg.  Co.  v. 
Rook,  84  Pa.  St.  442 ;  24  Am.  Rep.  204 ;  Kerr  v.  Russell,  69  111.  666 ;  18  Am. 
Rep.  634.  And  a  mistake  in  the  certificate  of  acknowledgment  cannot  be 
subsequently  amended,  unless  the  mistake  relates  to  an  unimportant  fact. 
Angier  v.  Shieffelin,  72  Pa.  St.  106  ;  13  Am.  Rep.  659:  Merritt  v.  Yates,  71  111. 
636 ;  22  Am.  Rep.  128. 

I  Elwood  v.  Klock,  13  Barb.  50;  Kirkr.  Dean,  2  Binn.341 ;  Lewis  v.  Coxe, 
5  Harr.  402  ;  Grove  v.  Todd,  41  Md.  633 ;  20  Am.  Rep.  76 ;  Scanlan  v.  Turner, 
1  Bailey,  421 ;  Rogers  v.  Woody,  23  Mo.  548 ;  Clark  v.  Redman,  1  Blackf. 
379.  In  Texas,  it  is  held  that  a  substantial  compliance  with  the  requirements 
of  the  statute  is  sufficient.  Belcher  v.  Weaver,  46  Texas,  293 ;  s.  c,  26  Am. 
Rep.  267.     See  also  Morris  v.  Sargent,  18  Iowa,  99. 

II  Harsiman  v.  Gray,  49  Me.  537  ;  Richardson  v.  Wyman,  62  Me.  280 ;  16 
Am.  Rep.  459;  Robinson  v.  Bates,  3  Mete.  40;  Stinson  v.  Sumner,  9  Mass. 
143;  Moore  v.  New  York,  8N.  Y.  110;  Manhattan  Co.  v.  Evertson,  6  Paige, 
457;  Malloney  v.  Horan,  49  N.  Y.  Ill;  10  Am.  Rep.  3S5 ;  Ridgway  v. 
Masting,  23  Ohio  St.  294;  13  Am.  Rep.  251 ;  Woodworth  v.  Paige,  6  Ohio 
St.  70;  Pinson  w.  Williams,  23  Miss.  64.  But  in  Illinois  it  was  held,  that  if  the 
deed  is  avoided  by  not  being  properly  recorded,  she  could  not  reclaim  her 
dower.  Morton  v.  Noble,  57  111.  176;  11  Am.  Rep.  7.  It  is  doubtful  if  this 
may  be  accepted  as  a  universally  recognized  exception.  From  the  rule  laid 
down  in  the  text,  which  is  fully  supported  by  the  cases  cited,  and  by  reason, 
the  judgment  in  the  Illinois  case  should  have  been  in  favor  of  the  widow. 

3  Rowe  v.  Hamilton,  3  Me.  63;  Yance  v.  Vance,  21  Me.  364;  Gibson  v. 
Gibson,  15  Mass.  106;  Croade  v.  Ingraham,  13  Pick.  33;  Carson  v.  Murray,  3 
Paige,  483  ;  Martin  v.  Martin,  22  Ala.  104. 

83 


§    128  DOWER.  [part  I. 

der  the  early  statute  of  Westminister,  13  Edw.  I.,  ch.  34, 
which  is  generally  received  in  this  country  as  part  of  the 
common  law,  if  a  wife  elopes  with  another  man  and  com- 
mits adultery  with  him,  she  is  deprived  of  her  dower.1 
The  forfeiture  is  more  in  the  nature  of  a  suspension  than 
an  absolute  extinguishment,  unless  such  elopement  and 
adultery  is  followed  by  a  divorce.2  If  the  parties  are  not 
subsequently  divorced,  her  dower  right  is  revived,  if  she 
returns  to  her  husband  and  is  received  by  him  and  accorded 
a  full  forgiveness.  She  has  dower  in  the  case  of  a  recon- 
ciliation  and  condonement,  not  only  in  the  lands  which  he 
possessed  before  her  elopement,  but  also  in  those  which  he 
has  acquired  and  sold  subsequently.3  The  commission  of 
adultery,  while  living  apart  from  her  husband,  whatever 
may  have  been  the  cause  of  the  separation,  will  also  bo  a 
bar.4  But  a  separation  of  some  kind  must  have  taken 
place,  in  order  that  her  adultery  might  work  a  forfeiture  of 
the  dowei-;  adultery  in  her  and  her  husband's  house  will 
not  be  a  bar.5  It  is  necessary,  to  support  the  claim  to 
dower,  that  the  widow  should  be  the  wife  of  the  husband 
at  his  decease.  If,  therefore,  they  have  been  divorced, 
from    whatever    cause,  for  his  as  well    as    her    fault,  her 

i  4  Kent's  Com.  53 ;  1  Washb.  on  Real  Prop.  242,  243,  309,  note.  See 
Elder  v.  Riel,  62  Pa.  St.  308;  1  Am.  Rep.  414;  Stegall  v.  Stegall,  2  Brocken, 
256;  Walters  v.  Jordan,  13  Ired.  361 ;  Bell  v.  Nealy,  1  Bailey,  312  ;  Lecompte 
v.  Wash,  9  Mo.  551.  In  Massachusetts,  it  has  been  held  that  the  statute  is 
not  recognized.     Lakin  v.  Lakin,  2  Allen,  45. 

2  Divorce  is  not  necessary  to  bar  her  dower  at  common  law.  1  Washb.  on 
Real  Prop.  242.  But  by  statute  it  is  now  provided  in  some  of  the  States  that 
elopement  and  adultery  without  divorce  is  no  bar.  Bryan  v.  Batchelder,  6  R. 
I.  543;  Reynolds  v.  Reynolds,  24  Wend.  193;  Pitts  v.  Pitts,  52  N.  Y.  593; 
Rawlins  v.  Buttel,  1  Houst.  224.     See  1  Washb.  on  Real  Prop.  309,  note. 

3  Co.  Lit.  33  a,  note  8 ;  Washb.  on  Real  Prop.  242,  243.  But  he  is  not 
bound  to  take  her  back  again.     Govier  v.  Hancock,  6  T.  R.  603. 

*  1  Washb.  on  Real  Prop.  243;  Hethrington  v.  Graham,  6  Bing.  135; 
Coggswell  v.  Tibbits,  3  N.  H.  41.  But  she  does  not  loose  her  dower,  if  she 
commits  adultery,  under  the  mistaken  belief  that  her  prior  husband  was  dead. 
1  Washb.  on  Real  Prop.  243;  1  Cruise  Dig.  175,  176. 

5  Coggswell  v.  Tibbetts,  3  N.  H.  41 ;  Elder  v.  Reed,  62  Pa.  St.  308;  1  Am. 
Rep.  414. 

84 


CH.  VI.]  DOWER.  §     129 

dower  right  would  be  extinguished,  unless  the  statutes 
of  the  different  States,  providing  for  divorces,  contain  a 
saving  clause,  giving  the  innocently  divorced  wife  the  right 
to  enjoy  her  dower,  as  if  she  was  still  a  wife.1 

§    129.   Continued  —  By  loss  of  husband's  seisin.  —  As 

a  general  proposition,  dower  can  be  enforced  only  so  far  as 
the  lawful  seisin  of  the  husband  extends  at  the  time  when 
the  dower  right  attaches.  She,  therefore,  acquires  dower 
in  his  lands,  subject  to  all  the  defects,  conditions,  limita- 
tions, and  incumbrances,  which  characterize  and  cover  the 
husband's  title.  If,  therefore,  the  husband's  seisin  is  de- 
feated, whether  by  the  assertion  of  a  paramount  title,  the 
breach  of  a  condition,  or  the  expiration  of  the  limitation,  the 
wife's  dower  right  is  also  extinguished.2  But  if  the  husband's 
estate  is  determined  and  made  to  shift  over  to  another  upon 
the  happening  of  a  contingency,  so  that  the  limitation  over 
is  a  conditional  limitation,  it  has  been  generally  held, 
although  controverted  by  good  authorities,  that  the  wife's 
dower  nevertheless  survives  and  suspends  the  execution  of 
the  limitation  over  until  her  death.3     A  like  exception  is 

1  4  Kent's  Com.  54 ;  2  Bla.  Com.  130 ;  Bishop's  Mar.'  &  Div.,  sects.  661, 
662,  663 ;  1  Washb.  on  Real  Prop.  309,  note. 

2  1  Washb.  on  Real  Prop.  256;  Seymour's  Case,  10  Rep.  96;  Ray  v.  Pange, 
5  B.  &  Aid.  561 ;  Brown  v.  Williams,  31  Me.  403 ;  Beardslee  v.  Beardslee,  5 
Barb.  324;  Sanford  v.  McLean,  3  Paige,  117;  Mitchell  v.  Mitchell,  8  Pa. 
St.  126 ;  Weir  v.  Tate,  4  Ired.  Eq.  264 ;  Bishop  v.  Boyle,  9  Ind.  169 ;  Northcut 
v.  Whipp,  12  B.  Mon.  72;  Greene  v.  Greene,  1  Ohio,  249. 

3  Buckworth  v.  Thirkell,  3  B.  &  P.  652,  note ;  Moody  v.  King,  2  Bing.  447 ; 
Sammes  v.  Payne,  1  Leon.  167;  Hatfield  v.  Sneden,  54  N.  Y.  285;  Evans  v. 
Evans,  9  Pa.  St.  190;  Milledge  v.  Lamar,  4  DeSau.  637;  Northcut  v.  Whipp, 
12  B.  Mon.  72.  Chancellor  Kent  says :  "The  ablest  writers  upo.i  property 
law  are  against  the  right  of  the  dowress,  when  the  fee  of  the  husband  is 
determined  by  executory  devise  or  shifting  use."  C.  J.  Gibson  in  Evans  v. 
Evans,  supra,  says:  "Not  one  of  the  text  writers  has  hinted  at  the  true 
solution  of  the  difficulty,  except  Mr.  Preston.  All  agree  that  where  the 
husband's  fee  is  determined  by  recovery,  condition,  or  collateral  limitation, 
the  wife's  dower  determines  with  it.  I  have  a  deferential  respect  for  the 
opinion  of  Mr.  Butler,  who  was  perhaps  the  best  conveyancer  of  his  day,  but 
I  cannot  apprehend  the  reasons  of  his  distinction  in  the  note  to  Co.  Lit.  241  a, 
between  a  fee  limited  to  continue  to  a  particular  period  at  its  creation,  which 

85 


§     130  DOWER.  [PART    I. 

recognized  universally  in  favor  of  the  continuance  of  the 
wife?s  dower,  where  the  husband's  estate  as  tenant  in  tail 
has  been  determined  by  the  failure  of  issue  capable  of 
taking.1 

§  130.  Continued  —  By  estoppel  in  pais.  —  After  the 
death  of  the  husband,  the  widow  may,  by  acts  which  are 
sufficient  to  work  an  estoppel  in  ordinary  cases,2  bar  her 
right  to  dower  without  any  formal  release.  Her  acts  would 
have  that  effect,  if  they  were  calculated  to  mislead  and 
work  a  fraud  upon  purchasers.3     But  in  order  that  her  acts 

curtesy  or  dower  may  survive,  and  the  devise  of  a  fee  simple  or  a  fee  tail 
absolute  or  conditional,  which  by  subsequent  words  is  made  determinable 
upon  some  particular  event,  at  the  happening  of  which  dower  or  curtesy 
will  cease."  "  How  to  reconcile  to  any  system  of  reason,  technical  or  natural, 
the  existence  of  a  derivative  estate,  after  the  extinction  of  that  from  which  it 
was  derived,  was  for  him  (Butler)  to  show,  and  he  has  not  done  it.  The  case 
of  a  tenant  in  tail,"  says  -Mr.  Preston  (3  Prest.  Abst.  373),  "  is  an  exception  aris- 
ing from  an  equitable  construction  of  the  statute  De  Donis,  and  the  cases  ot 
dower  of  estates  determinable  by  executory  devise  and  springing  (shifting) 
U36  owe  their  existence  to  the  circumstance  that  these  limitations  are  not 
governed  by  common  law  principles."  "It  was  the  benign  temper  of  the 
judges  who  moulded  the  limitations  of  the  estates  introduced  by  them,  whether 
original  or  derivative,  so  as  to  relax  the  severer  principles  of  the  common  law, 
and  among  other  things,  to  preserve  curtesy  and  dower  from  being  barred  by 
a  determination  of  the  original  estate  which  could  nut  be  prevented."  The 
foregoing  opinion  of  Justice  Gibson  is  more  an  explanation,  how  the  courts 
arrived  at  the  distinction  between  conditional  limitations  and  other  determin- 
able estates,  than  a  logical  and  sound  argument  in  favor  of  it.  It  is  difficult 
to  see  why  the  equity  of  the  tenant  in  curtesy  or  dower,  over  the  grantee  of 
the  limitation  over  in  a  conditional  limitation,  should  be  superior  to  the  equity 
against  the  heir  of  the  grantor,  who  takes  the  property  upon  the  determina- 
tion of  an  estate  upon  limitation,  or  estate  upon  condition.  But  the  position 
of  the  Pennsylvania  court  is  sustained  by  the  other  cases  cited.  The  student 
is  not  prepared  to  understand  the  refined  distinctions  here  hinted  at,  until  he 
has  mastered  the  subsequent  chapters  on  Estates  upon  Condition,  Uses  and 
Trusts,  Remainders  and  Executory  Devises.  A  recurrence  to  this  section  aftei 
a  study  of  the  subjects  mentioned,  is  advisable. 

1  4  Kent's  Com.  49;  1  Washb.  on  R-al  Prop  261 ;  N  rt  uut  o.  Wh  pp.  12 
B.  Mon.  73 ;  Paine's  Case,  8  Rep.  36. 

2  See  post,  sects.  724,  726. 

8  It  must  bo  an  unequivocal  act  or  declaration.  Mere  silence  is  not  suffi- 
cient, and  presence  at  the  sale  without  giving  notice  of  her  ri^ht,  will  not 
estop  her  lrom  claiming  dower.     Heth  v.  Cocke,    1  Rand.  344 ;    Smith  v 

86 


CH.  VI.]  DOWER.  §     131 

during  coverture  may  operate  as  an  estoppel  and  bar  her 
dower  they  must  be  equivalent  in  legal  effect  to  one  of  the 
different  formal  modes  provided  by  law  for  the  extinguish- 
ment of  the  dower.1 

§  131 .  Continued  —  By  statute  of  limitations.  —  Under 
no  circumstances  will  the  wife's  inchoate  right  be  affected 
by  the  adverse  possession  of  the  land  during  the  life  time  of 
the  husband.2  And  after  it  has  become,  by  his  death,  a  con- 
summate right  in  the  nature  of  a  chose  in  action,  although 
long  adverse  possession  after  the  husband's  death  is  proper 
evidence  for  the  jury  to  establish  a  release  of  the  dower 
right,  it  is  no  absolute  bar  to  the  action,  unless  the  statute 
is  made  expressly  to  include  actions  of  dower.3 

Paysenger,  2  Const.  (S.  C.)  59;  Owen  v.  Slatter,  26  Ala.  547;  Tennert  v. 
Stoney,  1  Rich.  Eq.  222.  And  likewise,  her  dower  is  not  estopped  by  a  convey- 
ance by  her  in  the  capacity  of  her  husband's  administratrix,  where  no  mention 
was  made  of  her  dower,  unless  she  covenants  to  warrant  the  title,  or  purports 
to  convey  generally  her  interest  as  well  as  his.  Shurtz  v.  Thomas,  8  Pa.  St. 
S59;  Usher  v.  Richardson,  29  Me.  415;  Magee  v.  Mellon,  23  Miss.  585.  And 
<lower  will  not  be  barred  by  joining  the  wi  low  in  a  suit  for  specific  perform- 
ance against  the  heirs  on  the  contract  of  the  husband  for  the  sale  of  the 
lands;  she  need  not  answer  and  may  afterwards  claim  her  dower.  Grady  v. 
MeCorkle,  57  Mo.  172 ;  17  Am.  Rep.  672.  But  parol  denials  of  her  claim, 
or  a  participation  in  the  proceeds  of  a  judicial  sale  in  a  suit,  to  which  she  is 
made  a  party,  will  estop  her.  Dongrey  v.  Topping,  4  Paige,  94 ;  Reed  v.  Mor- 
rison, 12  Serg.  &  R.  18;  Simpson's  Appeal,  8  Pa.  St.  199;  Gardiner  v.  Miles, 
6  Gill,  94 ;  Wright  v.  De  Groff,  14  Mich.  167 ;  Ellis  v.  Diddy,  1  Ind.  561 ; 
Smiley  v.  Wright,  2  Ohio,  511. 

1  Martin  v.  Martin,  22  Ala.  104.  And  where  the  wife  of  the  mortgagor 
releases  dower  in  her  husband's  conveyance  of  the  equity  of  redemption,  it 
bars  her  dower  in  the  entire  estate,  although  she  did  not  join  in  the  execution 
of  the  mortgage.  Hoogland  v.  Watt,  2  Sandf.  Ch.  148.  See  Usher  v.  Rich- 
ardson, 29  Me.  415. 

2  Durham  v.  Angier,  20  Me.  242;  Moore  v.  Frost,  3  N.  H.  127. 

3  4  Kent's  Com.  70 ;  Parker  v.  Obear,  7  Mete.  24 ;  Barnard  v.  Edwards,  4 
N.  H.  107;  Spencer  v.  Weston,  1  Dev.  &  B.  213;  Guthrie  v.  Owen,  10  Yerg. 
339 ;  1  Washb.  on  Real  Prop.  267.  But  in  a  number  of  the  States  there  are 
express  statutory  provisions  in  respect  to  barring  dower  by  lapse  of  time.  See 
Robie  v.  Flanders,  33  N.  H.  521;  Durham  v.  Angier,  20  Me.  242;  Chew  v. 
Farmers'  Bank,  2  Md.  Ch.  231 ;  Spencer  v.  Weston,  1  Dev.  &  B.  213 ;  Wilson 
v.  McLenaghan,  1  McMull.  Eq.  35;  Chapman  v.  Schraeder,  10  G».  321 ;  Ralls 
v.  Hughes,  1  Dana,  407;  Carmichael  v.  Carmichael,  5  Humph.  96;  Ridgwayv. 

87 


§    134  DOWER.  [part  I. 

§  132.   Continued  —  By  exercise  of  eminent  domain. — 

It  is  well  settled,  that  the  dower  right  of  the  wife  or  widow 
is  defeated  by  the  exercise  of  eminent  domain  over  the 
land,  out  of  which  the  dower  issues.  But  it  is  a  matter  of 
considerable  doubt,  whether  the  right  before  assignment, 
during  the  life  of  the  husband,  or  after  his  death,  partakes 
so  much  of  the  nature  of  an  interest  or  estate  in  the  land, 
as  to  entitle  her  to  compensation  separate  from  her  husband 
or  his  heirs  and  assignees.  It  has  been  held  that  she  cannot 
claim  such  compensation,  but  the  question  cannot  be  consid- 
ered as  definitely  settled.1 

§  133.  Widow's  quarantine.  —  Upon  the  death  of  the 
husband,  the  widow's  right  of  dower  becomes  consummate, 
and  she  is  entitled  to  an  immediate  assignment  of  her  dower. 
Until  assignment  has  been  made,  and  for  a  period  of  forty 
days,  she  was  entitled  at  common  law  to  a  residence  in  the 
principal  mansion  house  of  her  husband,  provided  she  did 
not  marry  within  that  time.  This  right  was  called  her  quar- 
antine.2 It  is  generally  recognized  in  the  United  States; 
but  since  it  is  principally  regulated  by  statute,  there  is  a 
considerable  variation  in  respect  to  its  duration,  and  it> 
relation  to  the  right  of  assignment  of  dower.  The  general 
rule  is  that  dower  should  be  set  out  to  her  within  the  time 
of  her  quarantine,  and  if  it  is  not,  she  may  at  the  end  of 
that  time  pursue  the  different  remedies  given  for  the 
recovery  of  the  dower  and  its  assignment.3 

§  134.  Assignment  —  Two  modes.  —  There  are  two 
modes  of  setting  out  dower  respectively  called,  "  of  com- 

McAlpine,  81  Ala.  464 ;  Owen  v.  Peacock,  38  111.  33 ;  Tattle  v.  Wilson,  10 
Ohio,  24. 

1  1  Washb.  on  Real  Prop.  270.  See  Moore  v.  New  York,  4  Sandf.  450;  a. 
c,  8  N.  Y.  110;  Gwynne  v.  Cincinnati,  3  Ohio,  24. 

2  Co.  Lit.  34  b;  2  Bla.  Com.  139. 

J  4  Kent's  Com.  63 ;  1  Washb.  on  Real  Prop.  272,  note  277.  She  can 
claim  her  right  of  quarantine  even  against  her  husband's  grantee.  Shelton  v. 
Carroll,  16  Ala.  118;  Phasis  v.  Leachman,  20  Ala.  662. 


CH.  VI.]  DOWER.  §    135 

mon  right,"  and  "  against  common  right."  If  it  has  been 
assigned  of  common  right,  and  the  widow  has  lost  a  part  or 
the  whole  of  the  land  set  out  to  her  by  the  assertion  of  a 
paramount  title,  she  is  entitled  to  an  assignment  de  novo  out 
of  the  remainder  of  the  husband's  estate,  so  that  the  loss 
by  eviction  will  not  fall  entirely  upon  her.  And  on  the 
other  hand,  if  there  is  an  eviction  of  the  heir,  after  assign- 
ment of  dower,  he  will  in  like  manner  be  entitled  to  a  new 
assignment.     But  if  the  assignment  was  "  against  common 

©  ©  © 

right,"  it  is  final,  and  if  the  share  of  either  widow  or  tenant 
of  the  freehold  is  subsequently  lost  by  eviction  under 
paramount  title,  they  have  no  remedy  against  each  other,, 
as  in  the  case  of  assignment  "  of  common  right."  l 

©  D 

§  135.  Continued  —  Of  common  right.  —  Dower  of  com- 
mon right  must,  as  a  general  rule,  be  set  out  by  metes  and 
bounds.2  It  is  not  necessary,  where  the  husband  died  seised, 
that  the  widow  should  receive  one-third  by  metes  and  bounds 
of  each  tract  of  land.  The  tenant  or  sheriff,  as  the  case 
may  be,  is  vested  with  considerable  discretion  in  regard  to 
this  matter,  and  if,  under  all  the  circumstances  surrounding 
the  case,  it  is  advisable  or  reasonable,  the  dower  might  be 
assigned  to  her  out  of  one  tract  altogether,  or  where  the 
property  consists  of  arable,  pasture  and  other  kinds  of 
land,  she  may  be  given  her  dower  in  one  kind  to  the  exclu- 
sion of  the  others.3  But  if  the  lands  are  held  separately 
by  several  grantees  of  the  husband,  dower  must  be  set  out 
in  each  parcel.4     Where  the  property  is  such  that  the  dower 

1  French  v.  Pratt,  27  Me.  381 ;  Scott  v.  Hancock,  13  Mass.  162 ;  Jones  v. 
Brewer,  1  Pick.  314;  Mantz  v.  Buchanan,  1  Md.  Ch.  202;  St.  Clair  v.  Wil- 
liams, 7  Ohio,  110;  Singleton  v.  Singleton,  5  Dana,  87;  Holloman  v.  Hollo- 
man,  5  Smed.  &  M.  559. 

1  Co.  Lit.  34  b,  note  213 ;  1  Washb.  on  Real  Prop.  273 ;  Pierce  v.  Williams, 
3  N.  J.  L.  521. 

3  1  Washb.  on  Real  Prop.  286  ;  White  v.  Story,  2  Hill,  543 ;  Jones  v.  Jones, 
Busbee  (N.  C),  177. 

*  Co.  Lit.  35  a;  Doe  v.  Gwinnell,  1  Q.  B.  423;  Coulter  v.  Holland,  2  flam 
330;  Cook  v.  Fisk,  Walk.  423. 

89 


>§    135  DOWER.  [part  I. 

cannot,  without  loss,  be  set  out  by  metes  and  bounds,  it  is 
then  permitted  that  a  certain  share  in  the  income  or  occu- 
pation and  enjoyment  of  the  land  should  be  set  apart  for 
her,  while  the  property  is  held  by  her  in  common  with  the 
tenant  of  the  freehold.1  In  making  the  assignment,  the 
extent  of  her  one-third  interest  in  the  land  is  determined 
by  the  market  and  productive  value,  instead  of  the  mere 
quantity  of  land.  She  is  entitled  to  that  part  of  the  estate 
which  would  yield  her  one-third  of  the  rents  and  profits 
received  from  the  entire  estate.2  If  the  land  is  held  by  the 
heir  or  devisee,  the  value  of  the  land  or  income  is  estimated 
at  the  time  when  the  dower  is  assigned,  thus  giving  her  the 
benefit  of  any  increase,  including  any  improvements  by  the 
heir,  as  well  as  subjecting  her  to  the  loss  by  any  natural 
depreciation  in  the  value  of  the  land  after  the  death  of  her 
husband.3  If  the  depreciation  is  the  result  of  a  wilful 
waste  by  the  heir,  she  has  her  right  of  action  for  damages 
against  him;  but  it  does  not  affect  or  alter  the  manner  of 
assignment.4  If  the  land  is  held  by  alienees  of  the  husband, 
the  English  rule,  which  is  followed  by  the  courts  of  some 
of  the  States,  is  that  the  value  must  be  estimated  according 
to  the  condition  of  the  estate  at  the  death  of  the  husband.5 

1  1  Washb.  on  Real  Prop.  286,  287 ;  Stoughton  v.  Leigh,  1  Taunt.  402 ; 
Stevens  v.  Stevens,  3  Dana,  371.  And  where  the  property  consists  of  mines, 
dower  may  be  assigned  by  a  parol  agreement  to  divide  the  profits,  and  to  give 
her  one-third  of  them.  Billings  v.  Taylor,  10  Pick.  460 ;  Coates  v.  Cheever,  I 
Cow.  478;  Lenfers  v.  Henke,  37  111.  405;  24  Am.  Rep.  263. 

2  Leonard  v.  Leonard,  6  Mass.  533 ;  Coates  v.  Cheever,  1  Cow.  476 ;  Mc- 
Daniel  v.  McDaniel,  3  Ired.  61 ;  Smith  v.  Smith,  5  Dana,  179. 

3  Powell  v.  Monson,  3  Mason,  368 ;  Parker  v.  Parker,  17  Pick.  236 ;   Cattin 
o.  Ware,  9  Mass.  209 ;  Davis  v.  Walker,  42  N.  H.  482 ;  Thompson  v.  Morrow, 
•5  Serg  &  R.  290 ;  Williams  on  Real  Prop.  233  ;  1  Washb.  on  Real  Prop.  288 
Co.  Lit.  32  a. 

*  1  Washb.  on  Real  Prop.  288.  See  Powell  v.  Monson,  3  Mason,  868 ; 
Campbell  v.  Murphy,  2  Jones  Eq.  362. 

5  Doe  v.  Gwinneil,  1  Q.  B.  682 ;  Campbell  v.  Murphy,  2  Jones  Eq.  357.  In 
New  York  and  Viginia,  the  value  of  the  land  at  the  time  of  alienation  is  the 
true  basis  of  estimating  the  value  of  the  dower  ri^ht.  Walker  o,  Schuyler, 
10  Wend.  480;  Tod  v.  Baylor,  4  Leisjh,  49S  :  Van  Q-elder  r.  Post,  2  Edw.  577. 
In  the  earlier  decisions,  the  courts  of  New  York  followed   the   English  rule. 

90 


CH.  VI.]  DOWER.  §    136 

The  general  rule  in  this  country  is  that  the  dower  must  be 
adjudged  according  to  the  value  of  the  land  at  the  time  of 
assignment,  less  any  increase  of  value  arising  from  improve- 
ments made  by  the  alienee,  thus  giving  the  widow  the 
benefit  of  the  increase  produced  by  the  general  and  natural 
rise  in  the  value  of  the  property.1  A  further  requisite  in 
the  assignment  "  of  common  right  "is,  that  the  estate  set 
out  to  her  must  be  absolute  for  life,  and  free  from  condi- 
tions and  exceptions.2 

§  136.  Dower  —  Against  common  right. —  In  the  assign- 
ment of  dower,  however,  it  is  not  necessary  that  it  should  be 
set  out  in  the  manner  above  described.  Any  other  mode  of 
assignment  may  be  adopted  by  agreement  of  the  parties, 
and  that  agreement  will  effectually  bar  all  claims  to  dower 
"  of  common  right,"  if  properly  and  legally  executed;  but 
the  practice  is  for  the  widow  to  give  a  release  under  seal  of 
her  dower  right.3 

Humphrey  v.  Pinney,  2  Johns.  484 ;  Shaw  v.  White,  13  Jobns.  484.  In  Hade 
v.  James,  6  Johns.  Ch.  258.  and  Barney  v.  Frowner,  9  Ala.  901,  the  question  ia 
left  an  open  one.  But  see  Marble  v.  Lewis,  36  How.  Pr.  343.  When  there 
is  a  change  in  the  law  after  the  husband's  alienation,  the  widow's  dower  in 
respect  to  the  aliened  lands  is  governed  by  the  law  as  it  existed  at  the  time 
of  alienation.  McCafferty  v.  McCafferty,  8  Blackf.  218 ;  Cowly  v.  Strader, 
1  Ind.  134;  Moore  v.  Kent,  37  Iowa,  20;  s.  c,  18  Am.  Rep.  1;  Kennerly  v. 
Missouri  Ins.  Co.,  11  Mo.  204. 

1  Powell  v.  Monson,  3  Mason,  365 ;  Boyd  v.  Carlton,  69  Me.  20 ;  31  Am. 
Rep.  268 ;  Carter  v.  Parker,  28  Me.  509 ;  Gore  v.  Brazier,  3  Mass.  544 ;  Leggett 
v.  Steele,  4  Wash.  C.  Ct.  305 ;  Thompson  v.  Morrow,  5  Serg.  &  R.  289 ;  Shirley 
v.  Shirley,  5  Watts,  328 ;  Bowie  v.  Berry,  3  Md.  Ch.  359 ;  Rawlins  v.  Buttel, 
1  Houst.  224 ;  Green  v.  Tennant,  2  Harr.  336 ;  Dunseth  v.  Bank  of  United 
States,  6  Ohio,  76 ,  Summers  v.  Babb,  13  HI.  483 ;  Johnson  v.  Van  Dyke,  9 
Ala.  422;  Smith  v.  Addleman,  5  Blackf.  406;  Larrowe  v.  Beam,  10  Ohio, 
498;  Woodbndge  v.  Wilkins,  3  How.  (Miss.)  360;  Taylor  v.  Broderick,  1 
Dana,  348.  And  if  the  alienee  has,  during  the  life  time  of  the  husband 
diminished  the  value  of  the  land  by  his  mismanagement,  the  widow  is  without 
Temedy.  Powell  v.  Monson,  3  Mason,  368 ;  Thompson  v.  Morrow,  5  Serg.  & 
R.  290;  McChinahan  v.  Porter,  10  Mo.  746. 

2  Co.  Lit.  34  b,  note  217 ;  1   Washb.  on  Real  Prop.  274. 

3  1  Washb.  on  Real  Prop.  273,  274 ;  Co.  Lit.  34  b  :  Vernon's  Case,  4  Rep.  1 ; 
Conant  v.  Little,  1  Pick.  189;  Jones  v.  Brewer,  76.  314. 

91 


§  138  dower.  [part  r» 

§  137.  By  whom  may  dower  be  assigned. —  The  tenant 
of  the  freehold  is  the  only  person  who  is  entitled  to  make  the 
assignment.  A  disseisor  may  do  it,  and  if  the  assignment 
is  made  strictly  "  of  common  right,"  it  is  binding  upon  the 
rightful  owner.1  If  the  tenant  be  a  minor,  his  assignment 
is  subject  to  revision  on  his  arrival  at  his  majority,  unless 
he  is  under  guardianship,  and  his  guardian  makes  the 
assignment,  when  it  will  be  binding  upon  him.2  Where  the 
land  is  held  by  two  or  more  jointly,  either  may  set  out  the 
dower.3 

§  138.  Remedies  for  recovery  of  dower. —  If  the  dower 
is  not  assigned  within  the  time  appointed  by  the  law  for  the 
continuance  of  the  widow's  quarantine,  she  can  compel  the 
assignment  by  a  resort  to  the  courts.  As  a  general  rule, 
controlled  in  each  State  by  statutory  enactments,  there  are 
three  remedies  for  the  recovery  of  dower:  1.  The  common- 
law  action  of  dower.  2.  A  similar  action  in  equity.  3.  A 
summary  proceeding  in  courts  of  probate,  usually  confined 
+o  claims  of  dower  against  the  heirs  and  devisees  of  the 
husband.4     The   most    effective  remedy    is   the  action    in 

1  Co.  Lit.  35  a :  Stoughton  v.  Leigh,  1  Taunt.  402 ;  1  Washb.  on  Real 
Prop.  274. 

2  2  Bla.  Com.  136;  Young  v.  Tarbell,  37  Me.  509;  Curtis  v.  Hobart,  41  Me. 
230;  Jones  v.  Brewer,  1  Pick.  314;  McCormick  v.  Taylor,  2  Ind.  336;  Boyers 
v.  Newbanks,  Id.  388.  In  Illinois,  the  assignment  may  be  revised  by  the  infant 
tenant  of  the  freehold,  although  it  was  set  out  by  the  guardian.  See  Bonner  v. 
Peterson,  44  111.  260. 

3  Co.  Lit.  35  a;  1  Washb.  on  Real  Prop.  275. 

4  "Where  it  has  not  been  changed  by  statute,  courts  of  law  and  equity  have 
concurrent  jurisdiction  in  respect  to  dower,  and  the  rules  governing  assign- 
ments are  alike  in  both  courts.  Herbert  v.  Wren,  7  Crunch,  376  ;  Maybury  w» 
Brien,  15  Pet.  21;  Badgley  v.  Bruce,  4  Paige,  98;  Kiddall  v.  Trimbell,  1 
Md.  Ch.  143 ;  Hartshorne  v.  Hartshorne,  2  N.  J.  Eq.  349 ;  Wells  v.  Beall,  2 
Gill  &  J.  468;  Blunt  v.  Gee,  5  Call,  481 ;  Campbell  v.  Murphy,  2  Jones  Eq. 
357  ;  Potier  v.  Barclay,  15  Ala.  439 ;  Osborne  v.  Horine,  17  HI.  92.  The  rem- 
edy in  the  Probate  Court  is  generally  confined  to  cases  of  dower,  which  arise 
between  the  widow  and  the  heir  or  devisee.  As  a  rule,  this  remedy  cannot  be 
resorted  to  in  a  case  of  dower  against  the  husband's  alienee.  French  v. 
Crosby,  23  Me.  276  •  Sheaflfe  v.  O'Neill,  9  Mass.  9 ;  Raynham  v.  Wilmarth,  la 

92 


CH.  VI.]  DOWER.  §     140 

equity,  in  that  it  includes  within  its  jurisdiction  actions 
upon  equitable  as  well  as  legal  dower,  while  the  common- 
law  remedy  is  confined  to  legal  dower.  For  further  par- 
ticulars, reference  must  be  made  to  the  statutes  of  the 
States. 

§  139.  Demand  necessary. —  In  some  States  it  is  required 
by  statute  that  a  demand  should  be  made  by  the  heir  or  ten- 
ant before  commencing  the  action  ;  and,  generally,  when 
damages  are  asked  for,  a  demand  is  made,  whether  required 
by  statute  or  not,  in  order  to  fix  a  time  from  which  the 
damages  begin  to  run.1  It  is  not  necessary  that  the  demand 
should  be  made  in  writing,  and  if  it  is  done  by  attorney 
the  power  may  be  given  by  parol.2  But  if  the  demand  or 
power  of  attorney  is  in  writing,  the  extent  of  the  demand 
should  be  made  sufficiently  clear  in  the  writing,  in  order 
that  no  resort  to  parol  evidence  will  be  necessary.3  The 
demand  must  be  made  of  the  tenant  of  the  freehold,  and,  if 
more  than  one,  it  must  be  made  of  all  of  them  ;  and  such 
a  demand  is  good  against  subsequent  purchasers  of  the 
tenant.* 

§  140.  Against  whom  and  where  the  action  is  Drought. — 

The  action  must  be  brought  in  the  county  where  the  land 
lies  ;  and  the  right  of  dower  is  construed  and  governed  by 
the  law  of  the  place  in  which  it  is  situated.5     The  action  is 

Mete.  414 ;  Matter  of  Watkins,  9  Johns.  246 ;  Bisland  v.  Hewitt,  11  Smed.  &  M. 
104 ;  Thrasher  v.  Pinckard,  23  Ala.  616.  In  Vermont,  the  court  of  probate 
has  exclusive  jurisdiction.    Danforth  v.  Smith,  23  Vt.  247. 

1  Young  v.  Tarbell,  37  Me.  609;  Stevens  v.  Eeed,  37  N.  H.  49;  Pond  v. 
Johnson,  9  Gray,  193 ;  Ford  v.  Erskine,  15  Mass.  484 ;  Jackson  v.  Churchhill, 
7  Cow.  287 ;  Ellicott  v.  Mosier,  7  N.  Y.  201 ;  Hopper  v.  Hopper,  2  N.  J.  715. 

1  Watson  v.  Watson,  10  C.  B.  3 ;  Lathrop  v.  Foster,  61  Me.  367;  Baker  v. 
Baker,  4  Me.  67 ;  Stevens  v.  Keed,  37  N.  H.  49 ;  Page  v.  Page,  6  Cush.  196. 

3  Haynes  v.  Powers,  22  N.  H.  590;  Davis  v.  Walker,  42  N.  H.  482;  Sloan 
v.  Whitman,  5  Cush.  532;  Atwood  v.  Atwood,  22  Pick.  283;  Bear  v.  Snyder, 
11  Wend.  592. 

'  Luce  v.  Stubbs,  35  Me.  92 ;  Barker  v.  Blake,  36  Me.  433  ;  Parker  v.  Mur- 
phy, 12  Mass.  485;  Burbank  v.  Day,  12  Mete.  557;  Watson  v.  Watson,  10  C. 
B.  3. 

6  1  Washb.  on  Real  Prop.  280 ;  2  Kent's  Com.  183,  note ;  Moore  v.  New  York, 

93 


§    142  DOWER.  [part  I. 

brought  only  against  those  who  are  tenants  of  the  freehold 
at  the  beginning  of  the  action,  and  such  is  the  rule,  even 
though  there  has  been  a  conveyance  after  the  demand  has 
been  made  ;  and,  likewise,  if  the  tenant  is  a  disseisor,  he  is 
the  proper  party.1 

§  141.   Continued  —  Abatement  by  deatb  of  widow. — 

The  action  for  dower  is  personal,  and  dies  with  the  widow, 
and  the  suit  is  abated  for  every  purpose,  notwithstanding 
judgment  has  been  rendered,  if  the  assignment  and  assess- 
ment of  damages  have  not  been  made.2 

§  142.  Judgment  —  Wbat  it  contains. —  If  the  widow  is 
successful  in  her  action,  she  is  given  judgment  for  the 
recovery  and  assignment  of  dower,  and,  in  some  places, 
damages  for  its  detention.3  The  judgment  is  of  a  twofold 
character ;  the  right  to  recovery  of  her  dower,  being  a  com- 
mon-law right,  while  the  claim  for  damages  rests  upon 
statute.  Judgment  may  be  rendered  for  the  assignment  of 
dower,  whether  the  claim  for  damages  has  been  lost  or  it 
still  exists  ;  but  if  the  right  to  dower  has  been  losl ,  whether 
it  be  by  the  running  of  the  Statute  of  Limitations,  or 
through  abatement  by  the  death  of  the  widow,  no  damages 

8  N.  Y.  110;  Lamar  v.  Scott,  3  Strobh.  502  ;  Duncan  v.  Dick,  Walk.  281.  And 
except  where  the  hind  has  been  sold  during  the  lifetime  of  the  husband,  the 
dower  right  is  determined  by  the  law  in  force  at  the  death  of  the  husband. 
Melizet's  Appeal,  17  Pa.  St.  455;  Randall  v.  Kreiger,  2  Dill.  447;  Burke 
v.  Barron,  8  Iowa,  135;  Lucas  v.  Sawyer,  17  Iowa,  517.  As  to  lands  con- 
veyed by  the  husband,  see  ante,  sect.  135,  note. 

1  Barker  v.  Blake,  36  Me.  433 ;  Manning  v.  Laboree,  33  Me.  343;  Otis  v. 
Warren,  16  Mass.  53 ;  Ellis  v.  Ellis,  4  R.  I.  110;  Jones  v.  Patterson,  12  Pa.  St. 
149;  Casporus  v.  Jones,  7  Pa.  St  120;  Hurd  v.  Grant,  3  Wend.  840;  Ellicott 
v.  Mosier,  7  N.  Y.  201;  Miller  v.  Beverley,  1  Hen.  &  M.  887;  Norwood  v. 
Morrow,  4  Dev.  &  I?.  442.  And  where  the  dower  is  to  be  assigned  out  of  sev- 
eral parcels  of  land,  belonging  to  different  persons,  unless  changed  by  statute, 
a  separate  action  must  be  brought  against  each  of  the  owners.  They  cannot 
be  sued  jointly.    Fosdick  v.  Gooding,  1  Me.  30;  Barney  r.  Frowner,  9  Ala.  901. 

2  Rowe  v.  Johnson,  19  Me.  146;  Atkins  v.  Yeomans,  6  Mete.  43S ;  Sand- 
back  v.  Quigley,  8  Watts.  460;  Turney  ».  Smith,  14  111.  212. 

3  2  Bla.  Com.  136;  Co.  Lit.  32  b ;  1  Washb.  on  Heal  Prop.  279.  28L 

94 


CH.  VI.]  DOWER.  §     143 

can  oe  recovered  by  her  or  her  personal  representatives.1 

§  143.   Continued  —  Damages,     when    recoverable. — 

Damages  could  not,  at  common  law,  be  recovered  for  the 
detention  of  the  dower  lands.  They  were  first  granted  by 
the  Statute  of  Merton,  which  has  generally,  in  this  country,, 
either  been  recognized  as  the  common  law  or  substantially 
re-enacted  with  important  additions.2  In  England,  under 
the  Statute  of  Merton,  the  damages  could  only  be  recovered 
of  the  heir  or  abator,  and  their  assigns,  not  against  the 
alienee  of  the  husband.  But  in  this  country,  damages  are 
recoverable  against  the  heir  from  the  death  of  the  husband,, 
or  the  expiration  of  her  quarantine :  if  it  is  against  a 
purchaser,  they  are  allowed  either  from  the  demand  made 
upon  him,  or  the  commencement  of  the  suit,  according  to 
the  statutory  provisions  or  local  laws  of  each  State.3  In 
New  York  there  is  a  further  restriction,  that  damages  shall 
not  be  allowed  for  more  than  six  years.4     The  mode  of 

1  Co.  Lit.  32  b,  note  4;  Rowe  v.  Johnson,  19  Me.  146;  Tuck  v.  Fitts,  18  N. 
H.  171 ;  Atkins  v.  Yeomans,  6  Mete.  438;  Sharp  v.  Pettit,  4  Dall.  212;  Shirtz. 
v.  Shirtz,  5  Watts,  255 ;  Turney  v.  Smith,  14  111.  242 ;  Waters  v.  Gooch,  6  J. 
J.  Marsh.  586. 

2  Co.  Lit.  32  b;  Thompson  v.  Collier,  Yelv.  112;  Embree  v.  Ellis,  2  Johns. 
119;  Hitchcock  v.  Harrington,  6  Johns.  290. 

3  In  some  of  the  States  the  English  rule  still  prevails,  that  she  cannot 
recover  from  the  husband's  grantee.  Sharp  v.  Pettit,  2  Dall.  212;  Eisher  v. 
Morgan,  1  N.  J.  L.  125;  Waters  v.  Gooch,  6  J.  J.  Marsh.  586.  In  others,  no- 
damages  are  recoverable  in  any  case.  Hayward  v.  Cuthbert,  1  McCord,  386  f 
Bank  of  United  States  v.  Dunseth,  10  Ohio,  18.  Where  the  suit  is  against  the 
heir,  damages  are  allowed  from  the  expiration  of  her  quarantine;  but  if  the 
heir  has  conveyed  the  estate  away,  damages  can  be  recovered  of  the  vendee 
from  the  time  of  his  purchase.  Newbold  v.  Eidgway,  1  Harr.  55;  Green  v* 
Tennant,  2  lb.  336;  Kussell  v.  Austin,  1  Paige,  192.  But  see  Seaton  v. 
Jamison,  7  Watts,  583.  The  damages  are  recovered  of  the  heir  for  the  time 
elapsing  between  the  death  of  the  husband  and  the  conveyance  by  the  heir. 
Hazen  v.  Thurber,  4  Johns.  Ch.  604.  Generally,  where  damages  are  allowed 
against  the  husband's  alienee,  they  run  from  the  demand  for  assignment.  See- 
1  Washb.  on  Pteal  Prop.  282,  283 ;  Sellman  v.  Bowen,  8  Gill  &  J.  50  ;  Beavers 
v.  Smith,  11  Ala.  20;  Thrasher  v.  Tyack,  15  Wis.  259;  McClanahan  v.  Porter, 
10  Mo.  746.  In  Virginia,  from  the  beginning  of  the  action.  Tod  v.  Baylor,  4 
Leigh,  498. 

*  Bell  v.  New  York,  10  Paige,  70;  Marble  v.  Lewis,  36  How.  Pr.  337. 

95 


§    144  DOWER.  [part  I. 

computing  the  damages  is  the  same  everywhere,  being  one- 
third  of  the  annual  rents  and  profits  for  the  time  for  which 
damages  are  allowed.1  The  damages  are  assessed  by  the 
jury  which  renders  the  verdict,  if  it  is  an  action  at  law; 
and  if  an  action  in  equity,  by  the  court,  if  assented  to,  or 
by  a  sheriff's  jury  summoned  for  the  purpose.2 

§  144.  Continued  —  Assignment  after  judgment. — The 

dower,  after  judgment  has  been  rendered,  may  be  set  out 
to  her  by  the  tenant  of  the  freehold.  And  a  parol  assign- 
ment, if  according  to  common  right,  would  be  binding 
upon  all  parties.  But  if  the  parties  cannot  agree,  the 
widow  is  entitled  to  an  order,  or  writing,  directed  to  the 
sheriff  and  commanding  him  to  set  out  the  dower.  He 
either  does  this  himself,  or  in  some  States  causes  it  to  be 
assigned  by  commissioners,  who  are  appointed  for  that 
purpose.3  Whenever  dower  is  awarded  by  legal  process, 
the  assignment  must  always  be  made  according  to  "  com- 
mon  right,"  so  far  as  it  is  possible  to  do  so  under  the 
circumstances  of  the  case.  Any  other  mode  of  assignment 
would  be  invalid,  unless  assented  to  by  the  parties.4  The 
sheriff  is  then  required  to  make  a  return  to  the  court,  and 
if  no  objections  are  raised  against  the  assignment,  it  is 
confirmed  by  order  of  the  court,  and  becomes  binding  upon 
all  parties.5 

1  4  Kent's  Com.  65 ;  1  Wasbb.  on  Real  Prop.  282 ;  Winder  v.  Little,  4 
Yeates,  152;  Layton  v.  Butler,  4  Harr.  507. 

2  1  Washb.  on  Real  Prop.  233. 

3  1  Washb.  on  Real  Prop.  284,  285;  Co.  Lit.  203  a,  note  105;  Manndrell 
•».  Manndrell,  7  Ves.  567 ;  Stoughton  r.  Leigh,  1  Taunt.  402 ;  Mansfield  v. 
Pembroke,  5  Pick.  449;  Parker  v.  Parker,  17  Pick.  236;  Benner  v.  Evans,  3 
Pa.  St.  454;  Weir  v.  Tate,  4  Ired.  £q.  264. 

*  1  Washb.  on  Real  Prop.  273,  285,  286:  Pierce  v.  Williams,  3  N.  J.  L. 
521. 

5  1  Washb.  on  Real  Prop.  284,  283.  And  if  there  is  any  objection  to  be 
made  against  the  assignment,  it  must  be  presented  at  the  time,  when  the  re- 
turn of  the  sheriff  or  commissioner  comes  up  for  comfirmation.  Tilson  t>. 
Thompson,  10  Pick.  359;  Jackson  v.  Hixon,  17  Johns.  123 ;  Chapman  v. 
Schroeder,  10  Ga.  321 

96 


CH.  VI.]  DOWER.  §     145 

§  145.  Assignment  —  When  two  or  more  widows  claim 
dower.  — If  the  land  descends  from  one  person  to  another, 
both  dying  before  assignment  of  dower  to  the  widow  of 
the  first,  the  widows  of  both  the  successive  tenants  would 
have  dower  in  the  same  land.  But  since  by  the  assignment 
of  dower,  the  heir  loses  the  seisin  to  that  part  of  the  land, 
the  widow  of  the  heir  would  only  have  dower  out  of  the 
remaining  two-thirds,  in  conformity  with  the  maxim,  dos 
de  dote  peti  non  debet.  But  if  the  heir  survived  the 
ancestor's  widow,  he  would  regain  the  actual  seisin  to  the 
reversion  of  the  widow's  one-third,  and  his  wife's  dower 
right  could  at  once  attach.1  But  where  dower  is  claimed 
by  two  widows,  whose  husbands  sustained  the  relation  of 
vendor  and  vendee  in  respect  to  the  land,  the  assignment 
of  dower  to  the  widow  of  the  former  would  only  suspend 
the  dower  right  of  the  other  widow  to  that  one-third  during 
the  life  time  of  the  first  dowress;  and  it  would  revive 
upon  her  death,  provided  the  assignment  to  the  elder  dow- 
ress did  not  take  place  before  the  marriage  of  the  vendee.2 
But  if  before  assignment,  the  elder  dowress  released  her 
right  to  the  tenant  of  the  freehold,  it  is  simply  an  extin- 
guishment of  her  right,  and  conveys  nothing  to  the  tenant. 
The  second  widow  would  then  be  entitled  to  dower  out  of 
the  entire  estate,  as  if  there  had  been  no  superior  claim  of 
dower.3 

1  Hitchens  v.  Hitchens,  2  Vern.  405 ;  Geer  v.  Hamblin,  1  Me.  54 ;  Man- 
ning v.  Laboree,  33  Me.  343 ;  Cook  v.  Hammond,  4  Mason,  485 ;  Elwood  v. 
Klock,  13  Barb.  50;  Reynolds  v.  Reynolds,  5  Paige,  161;  Safford  v.  Saf- 
ford,  7  Paige,  259;  McLeery  v.  McLeery,  65  Me.  172;  20  Am.  Law  Rep. 
683;  Robinson  v.  Miller,  2  B.  Mon.  288. 

2  Bastard's  Case,  4  Rep.  122;  Geer  v.  Hamblin,  1  Me.  54;  Mannings. 
Laboree,  33  Me.  343;  Dunham  v.  Osborne,  1  Paige,  634;  Reynolds  v. 
Reynolds,  5  Paige,    161.     See  Bear  v.  Snyder,  11  Wend.  592. 

3  Elwood  v.  Klock,  13  Barb.  50;  Atwood  v.  Atwood,  22  Pick.  283.  But 
see  Leavitt  v.  Lamprey,  13  Pick.  382,  where  the  court  holds  that  a  release  or 
assignment  by  the  elder  dowress  to  the  tenant,  after  judgment  for  recovery 
of  her  dower  has  been  rendered,  will  not  entitle  the  second  dowress  to  dower 
out  of  the  whole  property. 

7  97 


§    147  DOWER.  [part   I. 

§  146.  Decree  of  sum  of  money  in  lieu  of  dower.  — In 

some  of  the  States,  it  is  held  competent  for  the  court,  where 
money  is  assigned  instead  of  dower  in  the  lands,  to  grant 
her  a  gross  sum  of  money  instead  of  an  annual  share  in 
the  income.1  But  the  power  of  the  court  to  do  so  is 
limited  in  other  States  to  cases,  where  parties  have  agreed 
upon  that  mode  of  settlement.2 

§  147.  Dower  barred  by  jointure.  —  Dower  is  also 
barred  by  jointure,  which  is  a  provision  made  for  the  wife 
by  the  husband  out  of  his  property  and  expressed  to  be  in 
lieu  of  dower.8  At  common  law  there  were  two  kinds, 
legal  and  equitable.  Legal  jointure  was  a  provision,  made 
by  way  of  use,  —  an  equitable  estate  for  life  or  in  fee  ;  an 
estate  for  years  was  not  sufficient.  It  could  not  be  pro- 
vided for  out  of  the  husband's  personalty,  only  out  of  real 
property  ;  and  if  it  took  the  form  of  an  annuity,  it  had  to 
be  made  a  charge  upon  land.4  If  it  is  expressly  stated  to 
be  in  lieu  of  dower,  a  provision  of  that  kind  would  bar 
dower  even  though  made  by  a  stranger.6  Nor  is  it  neces- 
sary that  the  estate  should  be  equal  in  value  to  the  dower 
right,  if  it  is  a  substantial  provision.6  At  common  law 
legal  jointure  did  not  require  the  assent  of  the  wife  or  her 

1  As  a  rule  the  amount  is  calculated  upon  the  chances  of  life.  Simonton 
v  Gray,  33  Me.  60 ;  Jennison  v.  Hapgood,  14  Pick.  345 ;  Goodburn  v. 
Stevens,  1  Md.  Ch.  441 ;  Brewer  v.  Vanarsdale,  5  Dana,  204.  In  South 
Carolina  the  gross  sum  is  arbitrarily  computed  at  one-sixth  of  the  fees. 
Wright  v.  Jennings,  1  Bailey,  27;  Garland  v.  Crow,  2  Bailey,  24. 

2  Hebert  v.  "Wren,  7  Cranch,  370;  Johnnson  v.  Elliott,  15  Ala.  112;  Lewis 
v.  James,  8  Humph.  537. 

3  It  will  not  bar  the  dower,  unless  the  provision  is  expressly  stated  to  be 
in  lieu  of  it.  Buckinghamshire  v.  Drurv,  2  Eden,  72;  Bubier  v.  Roberts,  49 
Me.  463;  Reed  v.  Dickermann,  12  Pick.  149;  Swaine  v.  Perine,  6  Johns.  Ch. 
489 ;  Couch  v.  Stratton,  4  Ves.  391. 

4  2  Bla.  Com.  137,  138;  Vernon's  Case,  4  Rep.  1 ;  Caruthers  i>.  Caruthers 
4  Bro.  C.  C.  500;  Vance  v.  Vance,  21  Me.  3G4;  Hastings  v.  Dickinson,  7 
Mass.  153;  McCartee  v.  Teller,  2  Paige,  562. 

6  1  Washb.  on  Real  Prop.  316 ;  1  Cruise  Dig.  195. 

6  1  Washb.  on  Real  Prop.  116;  Drury  v.  Drurv,  2  Eden,  57  ;  Buckingham- 
shire v.  Drurv,  lb,  75. 

98' 


CH.  VI.]  DOWER.  §    148 

guardian  in  order  to  make  it  binding  upon  her,  provided 
it  was  not  fraudulent.  Her  assent  only  operated  to  con- 
clude her  from  setting  up  the  charge  of  fraud.1  But  the 
rule  in  this  respect,  has  been  changed  in  many  of  the 
States,  and  the  intended  wife  is  now  required  to  be  made  a 
party  to  the  deed.2  Equitable  jointure,  which  is  now  more 
largely  resorted  to  in  this  country,  instead  of  being  a 
formal  actual  provision,  is  an  executory  contract  for  such 
a  provision,  of  which  a  court  of  equity  will  decree  specific 
performance.  The  intended  wife,  or  her  guardian,  if  a 
minor,  must  assent  to  the  jointure,  and  with  such  assent 
it  may  issue  out  of  either  real  or  personal  property  or  both, 
and  may  assume  any  form.3  Both  legal  and  equitable 
jointure,  in  order  to  be  a  complete  bar  to  dower,  must  be 
made  before  marriage.  If  it  is  settled  upon  the  wife  after 
marriage,  the  widow  has  the  right  to  elect  which  she  shall 
take,  but  she  is  not  entitled  to  both.4  Jointures  have  of 
late  years  given  way  to  what  are  known  as  marriage  settle- 
ments, so  that  they  are  very  rarely  met  with  in  actual 
practice. 

§  148.   Continued  —  By    testamentary    provision. —  If 

the  testator  makes  provision  for  his  widow  in  lieu  of  dower, 
the  widow  must  elect  between  that  and  her  dower  right. 
The  right  of  election  is  a  personal  one  and  is  not  transfer- 
able. The  provision,  if  accepted,  will  be  a  good  bar  to 
dower,    though  it   consists  entirely  of    personalty,    thus 

1  Co.  Lit.  36  b;  1  Washb.  on  Real  Prop.  316,  317;  Buckinghamshire  v. 
Drury,  2  Eden,  64 ;    McCartee  v.  Teller,  3  Paige,  656. 

2  Vance  v.  Vance,  21  Me.  370 ;  Bubier  v.  Roberts,  49  Me.  463 ;  1  Greenl. 
Cruise,  195,  200.  See  also,  Hastings  v.  Dickinson,  7  Mass.  155;  Kennedy  v. 
Nedrow,  1  Dall.  417 ;  Ambler  v.  Norton,  4  Hen.  &  M.  23. 

3  Drury  v.  Drury,  2  Eden,  39-75;  Caruthers  v.  Caruthers,  4  Bro.  C.  C. 
500;  Cobert  v.  Cobert,  1  Sim.  &  Stu.  612;  Smith  v.  Smith.  5  Ves.  189;  Mc- 
Cartee v.  Teller,  2  Paige,  550;  Shaw  v.  Boyd,  6  Serg.  &  R.  309;  An- 
drews v.  Andrews,  8  Conn.  79;  Craig  v.  Walthall,  14  Gratt.  518;  1  Washb. 
on  Real  Prop.  318,  319;  Williams  on  Real  Prop.  236,  Rawle's  note. 

*  McCartee  v.  Teller,  2  Paige,  559;  Drury  v.  Drury,  2  Eden,  64; 
Swaine  v.  Perine,  5  Johns.  Ch.  482;  1  Washb.  on  Real  Prop.  317. 

99 


5    148  DOWER.  [PART    I  . 

excluding  her  from  her  share  in  the  realty.1  If  accepted, 
it  not  only  bars  her  dower  to  lands,  of  which  the  husband 
died  seised,  but  also  to  those  which  he  had  aliened  during 
life.2  But  the  intention,  that  the  testamentary  provision 
must  be  taken  in  lieu  of  dower,  must  be  made  to  appear  in 
the  terms  of  the  will,  either  expressly  or  impliedly,  as 
where  the  behests  of  the  testator  cannot  be  fully  carried 
out,  if  dower  is  claimed  together  with  the  provision.  If 
this  intention  is  not  established,  she  might  at  common  law 
claim  both.3  But  in  a  number  of  the  States  by  statutory 
enactment  a  testamentary  provision  in  favor  of  the  wife  is 
presumed  to  be  in  lieu  of  dower,  unless  the  contrary  inten- 
tion is  shown.4 

1  Bubier  v.  Roberts,  49  Me.  463;  Hubbard  v.  Hubbard,  6  Mete.  50;  Pol- 
lard v.  Pollard,  1  Allen,  490;  Welch  v  Anderson,  28  Mo.  293.  The  right 
of  election  in  such  cases  cannot  be  exercised  by  any  one  for  her.  Thus  the 
guardian  or  committee  of  an  insane  widow  cannot  make  the  election.  Ken- 
nedy v.  Johnstone,  65  Pa.  St.  451 ;  3  Am.  Rep.  650. 

2  Allen  v.  Pray,  12  Me.  138;  Chapin  v.  Hill,  1  R.  I.  446;  Kennedy  v. 
Mill,  13  Wend.  553;  Evans  v.  Pierson,  9  Rich.  9;  Hornsey  v.  Casey,  21 
Mo.  545.  Contra,  Borland  v.  Xicols.  12  Pa.  St.  38 ;  Higginbotham  v.  Corn- 
well,  8  Gratt.  83. 

s  Herbert  v.  Wren,  7  Cranch,  370;  Allen  v.  Pray,  12  Me.  138;  Chapin 
v.  Hill,  1  R.  I.  446 ;  Bull  v.  Church,  5  Hill,  206 ;  Van  Order  v.  Van  Order, 
10  Johns.  30;  Adsit  v.  Adsit,  2  Johns.  Cb.  448;  Lewis  v.  Smith,  9  N.  Y. 
502;  Kennedy  v.  Nedrow,  1  Dall.  418;  Duncan  p.  Duncan,  2  Yeates,  302; 
Stark  v.  Hunton,  1  N.  J.  Eq.  210;  White  v.  White,  16  N.  J.  L.  202; 
Higginbotham  v.  Cornwell,  8  Gratt.  83;  Whilden  v.  Whilden,  Riley, 
205;  Pickett  v.  Peay,  3  Brev.  545;  Hall  v.  Hall,  8  Rich.  Eq.  407; 
Raines  v.  Corbin,  24  Ga.  185;  Tooke  v.  Hardeman,  7  Ga.  20;  Green  v. 
Green,  7  Port.  (Ala.)  19;  Hilliard  v.  Binford,  10  Ala.  987;  Pemberton  v. 
Pemberton,  29  Mo.  408;  Corriell  v.  Ham,  2  Iowa,  558;  Clark  v.  Griffith, 
4  Iowa,  405;  Ostrander  v.  Spickard,  8  Blackf.  227;  Yancy  >•.  Smith,  2  Mete 
(Ky.)  408. 

*  See  Herbert  v.  Wrenomitch,  7  Cranch,  378 ;  Bubier  *••  Roberts,  49  Me.  464  ; 
Reed  v.  Dickerman,  12  Pick.  140;  Smith  v.  Baldwin,  2  Ind.  404:  McCans 
v.  Board,  1  Dana,  40;  Thompson  v.  Egbert,  17  N.  J.  L.  459;  Collins  r. 
Carman,  5  Md.  504;  Hilliard  v.  Binford,  10  Ala.  987.  In  most  of  the 
States,  there  is  also  a  statutory  rule,  that  if  the  election  is  not  made  within  a 
certain  period,  usually  six  months  after  the  death  of  the  testator,  it 
will  be  presumed  that  she  has  elected  to  take  the  testamentary  provision. 
Hastings  v.  Clifford,  82  Me.  182;  Smith  ;-.  Smith,  20  Vt.  270:  Pratt  v  Fel- 
ton,  4  Cush.  174;  Kennedv  v  Mills,  13  Wend.  556;  Thompson  v.  Egbert, 
100 


SECTION  IV. 


HOMESTEAD     ESTATES. 


Section   158.  History  and  origin. 
169.  Nature  of  the  estate. 

160.  Who  may  claim  homestead. 

161.  What  may  be  claimed. 

162.  Exemption  from  debts. 

163.  How  homestead  may  be  lost  —  By  alienation. 

164.  Continued  —  By  abandonment. 

§  158.  History  and  origin.  —  These  estates  are  not  of 
common-law  origin.  They  are  purely  statutory  and  have 
been  in  existence  only  within  the  last  thirty  years.  The 
object  of  their  creation  is  to  provide  for  the  family  a  home- 
stead, which  shall  be  exempt  from  a  levy  under  execution 
for  the  debts  of  the  owner,  and  save  the  community 
the  necessity  of  supporting  such  persons.  The  exemption 
rests  only  on  public  policy,  and  is  not  given  through  any 
sympathy  for  the  debtor.  As  these  estates  are  created  by 
statute,  and  each  statute  varies  in  its  details,  it  is  impossible 
to  do  more  than  present  in  a  general  outline  the  ordinary 

17  N.  J.  L.  459;  Boone  v.  Boone,  3  Har.  &  McH.  93;  Collins  v.  Carman, 
5  Md.  504;  Pettijohn  v.  Beasley,  1  Dev.  &  B.  254;  Lewis  v.  Lewis,  7 
Ired.  Eq.  72 ;  Malone  v.  Majors,  8  Humph.  577 ;  Ex  parte  Moore,  1  How. 
(Miss.)  665;  Hilliard  v.  Binford,  10  Ala.  987;  Kemp  v.  Holland,  10  Mo. 
256.  But  see  Merrill  v.  Emery,  10  Pick.  507,  where  it  is  held  that  if 
the  widow  dies  during  the  time  prescribed  for  making  the  election,  she 
will  be  presumed  to  have  elected  that  provision  which  was  most  favora- 
ble to  her. 

101 


§     160  HOMESTEAD    ESTATES.  [PABT    I. 

and  usual  characteristics  of  such  estates.     At  present  they 
prevail  in  almost  all  of  the  States  of  this  country.1 

§  159.  Nature  of  the  estate.  —  As  a  general  proposition, 
though  varying  somewhat  in  the  different  States,  the  estate 
is  one  for  the  life  or  lives  of  those  who  may  claim  it,  and  in 
most  cases  the  ordinary  incidents  of  life  estates  would 
attach  to  it.'2  The  most  general  provision  is  that  it  shall  be 
for  the  life  of  the  husband,  to  the  surviving  widow  for  life 
or  during  widowhood,  and  to  the  children  during  minority. 
And  when  the  widow  claims  it,  it  is  generally  granted  to 
her  in  addition  to  her  dower  right.  One  is  not  affected  by 
the  other.3 

§  160.  Who  may  claim  homestead.  —  It  is  generally 
provided  that  any  one  who  can  be  in  any  sense  denominated 
the  "  head  of  the  family,"  may  claim  the  homestead  for 
their  benefit.  Thus,  the  right  may  be  claimed  by  the 
husband,  and,  after  his  death,  the  wife,  who  generally  has 

1  The  reader  is  also  referred  to  Judge  Thompson's  work  on  Homesteads 
and  Exemptions.  Judge  Thompson,  in  his  preface  to  this  treatise,  Bays: 
"To  compile,  digest,  and  reduce  to  any  condition  of  connection  and  sym- 
metry near  2,000  decisions,  involving  the  construction  of  a  hundred  statutes, 
similar  in  their  main  features,  but  dissimilar  in  many  details,  is  like  writing  a 
treatise  on  all  the  Codes  of  Europe."  Recognizing  the  accuracy  of  this 
statement,  we  will  present  in  the  present  connection  only  the  main  features, 
and  refer  the  reader  to  Judge  Thompson's  book  and  the  statute  of  his  own 
State  for  the  details. 

*  See  Kerley  v.  Kerley,  13  Allen,  287;  Abbott  v.  Abbott,  97  Mass.  136; 
Black  v.  Curran,  14  Wall.  403 ;  McDonald  v.  Crandall,  43  111.  232 ;  Burns  v. 
Keas,  21  Iowa,  257;  Folsom  v.  Carli,  5  Minn.  337;  Smith  v.  Estell,  34  Miss. 
527 ;  Locke  v.  Rowell,  47  N.  H.  49 ;  Tieman  v.  Tieman,  34  Texas,  625 ;  Howe  v. 
Adams,  28  Vt.  544;  Jewett  v.  Brock,  32  Vt.  65;  Bowman  v.  Noiton,  16  Cal. 
217;  Thompson  on  Homest.,  sect.  540. 

3  Chaplin  v.  Sawyer,  35  Vt.  290;  Mercier  r.  Chase,  11  Allen,  194;  Bates 
v.  Bates,  97  Mass.  392;  Chisholm  v.  Chisbolm,  -11  Ala.  327;  Merriman  ?•. 
Lacefield,  4  Heisk.  222 ;  Walsh  v.  Eeis,  50  111.  477 ;  Bresee  v.  Stiles,  22  Wis. 
120.  Contra,  McAfee  v.  Bottis,  72  N.  C.  29;  Singleton  v.  Huff,  49  Ga.  584; 
Butterfleld  v.  Wicks,  44  Iowa,  310.  See  Thompson  on  Homest.,  sects.  555- 
566. 

102 


CH.  VI.]  HOMESTEAD    ESTATES.  <S     161 

the  right  to  claim  it  for  herself,  though  she  may  have  no 
children.1  But  an  unmarried  person  may  claim  it,  if  he 
has  living  with  him  unmarried  sisters  and  others  who  are 
dependent  upon  him.2 

§  161 .  What  may  be  claimed.  —  A  homestead,  as  defined 
by  the  courts,  is  the  place  where  one  dwells.  It  is  his 
residence.  And  the  same  rules  and  principles  apply  to  the 
homestead,  which  govern  the  determination  of  what  is 
one's  domicile.3  In  order  that  the  homestead  right  may  be 
claimed  in  a  lot  or  parcel  of  land,  it  must  be  shown  to  be 
the  bona  fide  residence  of  him  and  his  family.     An  intention 


1  Nicholas  v.  Parezell,  21  Iowa,  265 ;  Stilloway  v.  Brown,  12  Allen,  34  ; 
McKenzie  v.  Murphy,  24  Ark.  155 ;  Davenport  v.  Alston,  14  Ga.  271 ;  Crane 
v.  Waggoner,  33  Ind.  83;  Kitchell  v.  Burgwin,  21  111.  40;  Folsom  v.  Carli,  6 
Minn.  337;  Morrison  v.  McDaniel,  30  Miss.  217;  Griffin  v.  Sutherland,  14 
Barb.  458 ;  Barney  v.  Leeds,  51  N.  H.  266 ;  Homestead  Cases,  31  Texas,  680 ; 
Estate  of  Walley,  1 1  Nev.  260. 

1  Marsh  v.  Lozenby,  41  Ga.  154;  Graham  v.  Crockett,  18  Ind.  119; 
Whaley  v.  Cadman,  11  Iowa,  226;  Homestead  Cases,  31  Texas,  678.  The  tests 
which  are  generally  applied  to  doubtful  cases,  are:  1.  Whether  there  is  a 
legal  or  moral  duty  to  support  the  persons  who  are  claimed  to  constitute  the 
family;  and,  2.  Whether  such  persons  are  actually  dependent  upon  him. 
Whaley  v.  Cadman,  11  Iowa,  226;  Salla  v.  Waters,  17  Ala.  486;  Black- 
well  v.  Broughton,  50  Ga.  390;  Connaughton  v.  Sands,  32  Wis.  387;  Wade 
v.  Jones,  20  Mo.  75.  The  cases  first  cited  were  where  an  unmarried  man 
had  indigent  sisters  living  with  him,  who  were  dependent  upon  him  for 
support.  In  the  same  manner  an  unmarried  woman,  supporting  the  children 
of  a  deceased  sister,  is  under  the  homestead  laws  the  head  of  a  familv. 
Arnold  v.  Waltz,  53  Iowa,  706 ;  36  Am.  Rep.  248.  So  also  the  guardian  of  a 
minor.  Rountree  v.  Dennard,  59  Ga.  629 ;  27  Am.  Rep.  235.  But  an  un- 
married man,  having  his  brother  and  brother's  wife  living  with  him,  is  not 
the  "  head  of  a  family."  Whalen  v.  Cadman,  11  Iowa,  226.  And  likewise  an 
unmarried  man,  having  no  dependent  relatives,  keeping  house  alone  with  his 
servants  and  farm  hands,  does  not  constitute  the  "head  of  the  family." 
Calhoun  v.  Williams,  32  Gratt.  18;  34  Am.  Rep.  759;  Garaty  v.  Dubose,  5 
S.  C.  498 ;  Calhoun  v.  McLendon,  42  Ga.  406. 

8  Davis  v.  Andrews,  30  Vt.  678 ;  Austin  v.  Stanley,  46  N.  H.  51 ;  Barney 
W.Leeds,  51  N.  H.  265;  Tomlinson  v.  Swinney,  22  Ark.  400;  Taylor  v. 
Boulware,  17  Texas,  74  ;  Kelly  v.  Baker,  10  Minn.  156;  Bunker  v.  Locke,  16 
Wis.  638 ;  Rogers  v.  Ragland,  42  Texas,  443. 

103 


§    162  HOMESTEAD    ESTATES.  [PART   I. 

to  make  it  such  will  give  no  right,1  nor  can  the  claim  be 
made  to  property  worth  more  than  the  sum  laid  down  by 
the  statute  of  the  State.  When  the  debtor  wishes  to  claim 
the  homestead,  it  is  necessary  that  it  should  in  someway  be 
ascertained  and  set  out.  Minute  details  in  regard  to  this 
matter  are  in  some  States  prescribed  by  the  statutes,2  but 
the  general  rule  is  that  the  debtor  must  select  the  land 
which  he  desires  for  a  homestead,  keeping  within  the  limit 
as  to  value.  If  the  value  of  the  property  exceeds  the  limit, 
it  may  be  partitioned  and  set  out  by  appraisers  at  the 
instance  of  creditors,  and  if  it  is  not  divisible,  the  property 
may  be  sold,  and  the  sum  allowed  by  statute  will  be  set 
apart  and  in  most  cases  invested  by  the  court  in  a  home- 
stead, while  the  remainder  of  the  purchase-money  will  be 
devoted  to  the  liquidation  of  his  debts.8 

§  102.  Exemption  from  debt.  —  The  exemption  of  the 
homestead  from  liability  for  the  debts  of  the  owner  is 
various  in  its  extent,  sometimes  absolute,  referring  to  all 
classes  of  debts,  and  sometimes  more  or  less  limited  to  par- 
ticular obligations,  depending  altogether  upon  the  special 
provisions  of  each  statute.  But,  perhaps,  the  most  general 
rule  is,  exemption  from  liability  for  all  debts,  except  taxes, 
and  such  debts  which  create  a  lien  upon  the  premises,  such 

1  Elston  v.  Robinson,  23  Iowa,  208;  Lee  v.  Miller,  11  Allen,  38;  Beecher 
v.  Baldy,  7  Mich.  488 ;  Kresin  v.  Mau,  15  Minn.  118 ;  Norris  v.  Moulton,  34  N.  H. 
394;  Smith  v.  Wells,  46  Miss.  71;  Cook  v.  McChristian,  4  Cal.  24;  Prescott 
v.  Prescott,  45  Cal.  58 ;  Tousville  v.  Pierson,  39  111.  453 ;  Kitchell  v.  Burg- 
win,  21  111.  40 ;  Christy  v.  Dyer,  14  Iowa,  440.  The  use  of  a  part  of  the 
premises  for  business  purposes  will  not  prevent  the  homestead  right  from 
attaching.  Hogan  v.  Manners,  23  Kan.  551 ;  33  Am.  Law  Rep.  199.  But  see 
Rhodes  v.  McCormick,  4  Iowa,  368;  Kurz  v.  Brusch,  13  Iowa,  371.  But 
lands  and  houses  rented  out  cannot  be  claimed  as  homestead.  Folsom  v.  Carli, 
5  Minn.  337;  Kelly  v.  Baker,  10  Minn.  154;  Ashton  v.  Ingle,  20  Kan.  670;  27 
Am.  Law  Rep.  197. 

*  See  Thompson  on  Horn  est.,  sects.  230,  236. 

3  1  Washb.  on  Real  Prop.  .if)6-38a;  Thompson  on  Homest.,  sects.  230,  238. 
104 


CH.  VI. J  HOMESTEAD    ESTATES.  §    163 

as  for  the  purchase-money,  or  judgment-debts,  where  such 
judgment  has  been  obtained  prior  to  the  attachment  of  the 
homestead.1 

§  163.  How  homestead  may  be  lost  —  By  alienation.  — 

The  attachment  of  the  homestead  right  does  not  take  away 
altogether  the  power  of  alienation.  It  is  the  subject  of 
sale,  mortgage,  and  release,  as  if  no  homestead  right  had 
existed.  But  for  the  complete  conveyance  of  the  title  and 
effectual  barring  of  the  homestead  right,  it  is  generally 
necessary  that  the  wife  should  join  in  the  deed  of  convey- 
ance.3 Such  alienation  conveys  the  whole  title,3  and  the 
proceeds  of  sale  are  to  be  reinvested  in  a  homestead, 
otherwise  they  become  subject  to  the  claims  of  creditors.4 


1  See  Thompson  on  Homest.,  sects.  290-388.  In  this  connection  it  may  stated 
that  the  homestead  can,  under  no  circumstances,  be  claimed  against  debts 
contracted  prior  to  the  passage  of  the  homestead  and  exemption  law. 
Homestead  Cases,  22  Gratt.  266 ;  12  Am.  Rep.  507  ;  Garrett  v.  Cheshire,  69  N. 
C.  396 ;  12  Am.  Rep.  647 ;  Gunn  v.  Barry,  15  Wall.  610. 

2  Poole  v.  Gerrard,  6  Cal.  71 ;  Dearing  v.  Thomas,  25  Cal.  224;  Burnside 
v.  Terry,  45  Ga.  629;  Kitchell  v.  Burgwin,  21  111.  44;  Slaughter  v.  Detiney, 
15  Ind.  49;  Babcock  v.  Hoey,  11  Iowa,  375;  Dollman  v.  Harris,  5  Kan.  598; 
Greenough  v.  Turney,  11  Gray,  334;  Frisbee  v.  Muster,  24  Mich.  452; 
Morris  v.  Moulton,  34  N.  H.  394 ;  Clark  v.  Shannon,  1  Nev.  568 ;  Re  Cross, 
2  Dill.  320;  Lawyers.  Slingerland,  11  Minn.  457;  Sears  v.  Hanks,  14  Ohio 
St.  298;  Sampson  v.  Williamson,  6  Texas,  116. 

s  That  a  conveyance  by  husband  and  wife  for  a  valuable  consideration 
will  pass  their  title  to  the  grantee  free  from  the  claims  of  creditors,  is  estab- 
lished beyond  a  doubt.  Bowman  v.  Norton,  16  Cal.  214;  Deffeliz  v.  Pico, 
46  Cal.  289 ,  Bonnell  v.  Smith,  53  Cal.  377 ;  Bliss  v.  Clark,  39  111.  590 ;  Lamb 
v.  Shays,  14  Iowa,  667 ;  Parker  v.  Doan,  45  Miss.  409.  But  it  has  been  held 
that  the  voluntary  conveyance  to  a  third  person  without  consideration  is  an 
act  of  abandonment,  a  fraud  upon  creditors,  and  the  creditors  may  attach  the 
property  in  the  hands  of  the  grantee.  Currier  v.  Sutherland,  54  N.  H.  475; 
20  Am.  Rep.  143.  But  see  Dientzer  v.  Bell,  11  Wis.  114;  Winebrenner  v. 
Weisinger,  3  B.  Mon.  33 ;  Dearman  v.  Dearman,  4  Ala.  521 ;  Planters'  Bank  v. 
Henderson,  4  Humph.  75;  Legro  v.  Lord,  10  Me.  161;  Vaughan  v.  Thomp- 
son, 17  111.  78;  Foster  v.  McGregor,  11  Vt.  595;  Garrison  v.  Monaghan,  33 
Pa.  St.  232. 

*  Smith  v.  Gore,  23  Kan.  88;  33  Am.  Rep.  158. 

105 


§     1(34  HOMESTEAD    ESTATES.  [l'ART    I. 

§  164.  Continued  —  By  abandonment. —  The  homestead 
may  also  be  lost  by  acts  which  constitute  an  abandonment 
of  the  homestead  ;  such  would  be  a  permanent  removal  from 
the  homesteads  where  actual  residence  is  required  to 
support  the  right,  or  the  acquisition  of  a  new  homestead.1 
For  details,  reference  must  be  made  to  the  statutes. 

1  Stewart  v.  Mackey,  16  Texas,  58 ;  Gonhenant  v.  Cockrell,  20  Texas,  96 ; 
Dearingu.  Thomas,  25  Ga.  224;  Moore  v.  Dunning,  29  111.  135;  Kitchen  v. 
Burgwin,  21  111.40;  Titman  v.  Moore,  43111.  169;  Floyd  v.  Mosier,  1  Iowa, 
513;  "Williams  v.  Swetland,  10  Iowa,  51;  Woodbury  v.  Luddy,  14  Allen,  1; 
Howe  v.  Adams,  28  Vt.  544.  A  temporary  absence,  animo  revertendi,  will 
not  cause  an  abandonment.  Tomlinson  v.  Swinney,  22  Ark.  400 ;  Holden 
v.  Pinney,  6  Cal.  234 ;  "Walters  v.  People,  18  111.  194 ;  Austin  v.  Swank,  9 
Ind.  112;  Wood  v.  Lord,  51  N.  H.  454;  Vetz  v.  Beard,  12  Ohio  St.  431; 
Barker  v.  Dayton,  28  Wis.  367. 

106 


CHAPTER  VII. 

ESTATES   LESS  THAN   FREEHOLD. 

Section  I.  —  Estates  for  years. 

II.  —  Estates  at  will,  and  tenancies  from  year  to  year. 
III.  —  Estates  at  sufferance. 

SECTION  1. 

ESTATES    FOR   TEARS. 

Section  171.  History  of  estates  for  years. 

172.  Definition. 

173.  Term  defined. 

174.  Interesse  termini. 

175.  Terms  commencing  in  futuro. 

176.  The  rights  of  lessee  for  years. 

177.  How  created. 

178.  Form  of  instrument. 

179.  Continued  — Distinction  between  present  lease  and  contract  for 

a  future  one. 

180.  Acceptance  of  lease  necessary. 

181.  Relation  of  landlord  and  tenant. 

182.  Assignment  and  subletting. 

183.  Involuntary  alienation. 

184.  Disposition  of  terms  after  death  of  tenant. 

185.  Covenants  in  a  lease,  in  general. 

186.  Continued  — Express  and  implied  covenants. 

187.  Implied  covenant  for  quiet  enjoyment. 

188.  Implied  covenant  for  rent 

189.  Implied  covenant  against  waste. 

190.  Covenants  running  with  the  land. 

191.  Conditions  in  leases. 

192.  Rent  reserved. 

193.  Rent  reserved  —  Condition  of  forfeiture. 

194.  How  relation  of  landlord  and  tenant  may  be  determined. 
55.  What  constitutes  eviction. 

196.  Constructive  eviction. 

197.  Surrender  and  Merger. 

198.  How  surrender  may  be  effected. 

199.  Right  of  lessee  to  deny  lessor's  title. 

200.  Effect  of  disclaimer  of  lessor's  title. 

201.  Letting  land  upon  shares. 

107 


§     171  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

§  171.  History  of  estates  for  years.  —  Under  the  feudal 
system,  the  smallest  interest  which  could  be  granted  out  of 
lands,  having  the  characteristics  of  an  estate,  was  a  freehold. 
Such  are  the  estates,  which  have  been  treated  in  the  pre- 
ceding pages.     But  there  obtained  at  that  time  a  custom  of 
granting  by  contract  to  tenants  the  possession  of  the  lands 
for  a  stipulated  period,  in  consideration  of  some  rent  .paid 
or  service  performed  by  the  tenant.     The  tenant  acquired 
no  estate  or  vested  interest  in  the  land,  which  would  give  to 
him  the  possessory  actions  necessary  for  the  protection  of 
such  interests.     If  he  was  evicted  by  the  landlord  or  by 
any   other   person,    he  had  only  his  action   for   damages 
against  the  landlord  for  the  breach  of  his  contract.     He 
could  not  recover  possession  as  in  the  case  of  a  freehold.1 
But  subsequently  the  writ  of  ejectment  was  invented  for 
his  protection,  by  which  he  could  recover  possession  of  the 
land,  with  damages  for  its  detinue,  and  this  form  of  action 
substantially  remains  to  this  day.2     But  these  estates,  as 
well  as  the   other   tenancies   considered  in  the   following: 
sections,  are  generally   considered  and   treated  as  chattel 
interests  in  lands,  having  more  the  characteristics  of  a  bail- 
ment, than  of  a  freehold  estate  in  real   property.     The 
tenant  is  never  said  to  be  seised  of  the  land.     The  actual 
seisin,  if  acquired  by  virtue  of  his  possession,  is  held  by 
him  as  a  quasi-bailee  of  the  remainder-man.3     This  general 
proposition  is,  however,  often  limited  by  statutory  enact- 
ments, which  give  to  estates  for  years  of  a  certain  duration, 
fixed  by  statute,  all  the  characteristics  of  a  freehold  estate.4 
Such    leaseholds,  by  force  of  these   statutes,  assume  the 
character  of  a  freehold  estate,  so  far  as  the  certainty  of  its 
duration  will  permit. 

1  1  Washb.  on  Real  Prop.  433,  435;  Maine's  Anc.  Law,  275. 

2  1  Washb.  on  Real  Prop.  436,  436;  Goodlittle  v.  Tombs,  3  Wils.   120; 
Campbell  v.  Loader,  3  H.  &  C.  527. 

3  1  Washb.  on  Real  Prop.  435 ;  1  Cruise  Dig.  224. 

*  1  Washb.  on  Real  Prop.  463 ;  Walker  Am.  Law,  279. 
108 


CH.  VII. J  ESTATES    LESS    THAN    FREEHOLD.  §    174 

§  172.  Definition.  —  An  estate  for  years  is  one  granted 
for  a  certain  definite  period  of  time,  by  the  owner  of  the 
freehold,  who  in  this  connection  is  called  the  lessor,  to  one 
called  the  lessee,  to  hold  and  enjoy  during  the  time  stipu- 
lated and  under  the  conditions  agreed  upon.  The  word 
years  is  used  simply  as  a  unit  of  time,  and  an  estate  for 
years,  technically,  may  be  for  any  period  of  time,  a  month, 
a  week,  etc.1 

§  173.  Term  defined.  — Since  the  estate  is  to  last  for  a 
definite  period  of  time,  having  a  precise  beginning  and  end, 
it  has  acquired  the  technical  designation  of  a  term,  from 
the  Latin  t<rminus.2  But  the  period  need  not  be  definitely 
fixed  by  the  contract  of  the  parties,  which  creates  the  estate. 
Under  the  maxim,  id  cerium  est  quod  certum  reddi  potest, 
the  contract  or  lease  would  be  valid,  if  it  contained  sufficient 
means  of  ascertaining  its  duration.  A  lease,  therefore,  for 
so  many  years  as  J.  S.  shall  name,  or  to  A.  during  his 
minority,  would  be  a  good  term,  while  a  lease  for  so  many 
years  as  A.  shall  live,  would  not  be  good  as  a  term,  since 
there  is  no  way  in  which  the  duration  of  the  term  can  be 
ascertained  until  its  expiration.3 

§  174.  Interesse  termini.  — The  lessee  does  not  acquire 
an  estate  in  the  land  until  he  has  entered  into  possession. 
His  interest  is  simply  a  right  of  entry,  and  is  called  an 
iyiteresse^termijiL  Until  possession  is  acquired,  he  cannot 
maintain  any  action  against  strangers  in  respect  to  the  land. 

1  1  Washb.  on  Real  Prop.  436 ;  Brown  v.  Bragg,  22  Ind.  122 ;  Gould  t>. 
School  Dist.,  8  Minn.  431. 

2  1  "Washb.  on  Real  Prop.  438 ;  Williams  on  Real  Prop.  388. 

3  Co.  Lit.  45  b ;  1  Washb.  on  Real  Prop.  441 ;  Dunn  v.  Cartright,  4  East, 
29;  Doe  v.  Dickson,  9  East,  15;  West.  Transp.  Co.  v.  Lansing,  49  IS.  Y.  508; 
Horner  v.  Leeds,  25  N.  J.  L.  106 ;  Delashman  v.  Barry,  20  Mich.  292.  On  the 
principle  that  the  number  of  years  can  be  ascertained  by  computation,  it  has 
been  held  that  a  devise  or  grant  of  lands,  to  pay  debts  out  of  the  rents  and 
profits,  is  treated  as  an  estate  for  years.  1  Cruise  Dig.  223 ;  Batchelder  i;. 
Dean,  16  N.  H.  268. 

109 


§    175  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

Before  the  entry,  the  right  of  possession  and  the  right  to 
bring  such  actions  are  in  the  lessor.1  It  has  also  been  held 
at  common  law  that  the  lessee  cannot,  before  entry,  maintain 
an  action  of  ejectment.  But  under  the  present  theory  in 
regard  to  this  action,  it  is  equivalent  to  common-law  entry, 
and  can  be  maintained  by  any  one  who  has  a  good  title  and 
an  immediate  right  of  entry.2  The  interexse  termini,  how- 
ever, is  so  far  a  vested  interest  as  to  be  capable  of  descent 
to  the  personal  representatives,  or  of  bequest  like  other 
chattel  interests.  It  can  also  be  assigned  or  released.3 
But  a  delay  on  the  part  of  the  lessee  to  convert  his  interesse 
termini  into  an  actual  estate,  does  not  suspend  his  liability 
on  the  covenants  of  his  lease,  unless  such  delay  is  occasioned 
by  the  fault  of  the  lessor.4 

§  175.  Terms  commencing  in  futuro.  —  Since  a  term  of 
years  is  a  contract  for  the  delivery  and  detention  of  the 
possession,  and  does  not  affect  the  seisin  of  the  reversioner, 
it  may  be  made  to  commence  at  any  time  in  the  future,  as 
well  as  in  the  present,  provided  it  does  not  offend  the  doc- 
trine of  perpetuities,  by  vesting  in  possession  at  a  time 
beyond  a  life  or  lives  in  being,  and  twenty-one  years  there- 

1  Co.  Lit.  46  b ;  4  Kent's  Cora.  97  ;  Doe  u.  Walker,  5  B.  &  C.  Ill ;  Wheeler  i>. 
Montefiore,  2  Q.  B.  142;  Wood  v.  Hubbell,  10  N.  Y.  487;  Sennett  v.  Bucher. 
3  Pa.  St.  392 ;  1  Washb.  on  Real  Prop.  442,  443.  And  although  the  words 
"bargain  and  sell  "  in  a  lease,  founded  upon  actual  and  valuable  consideration, 
will  create  a  use,  which  will  be  executed  into  a  legal  estate  by  the  Statute  of 
Uses,  the  same  rule  in  respect  to  the  necessity  of  entry  into  possession  applies. 
2  Sand.  Uses,  56;  1  Washb.  on  Real  Prop.  443.  See  Harrison  v.  Blackburn, 
17C.B.  (n.  s.)678. 

2  1  Washb.  on  Real  Prop.  443,  444;  Gardner  v.  Keteltas,  3  Hill,  332; 
Whitney  v.  Allaire,  1  N.  Y.  305. 

3  Co.  Lit.  46  b,  338  a;  4  Kent's  Com.  97;  Doe  v.  Walker,  5  B.  &  C.  Ill ; 
1  Washb.  on  Real  Prop.  444. 

*  1  Washb.  on  Real  Prop.  445 ;  Salmon  v.  Smith,  1  Saund.  203,  note  1 ; 
Whitney  v.  Allaire,  1  N.  Y.  305;  Lafarge  ».  Mansfield,  31  Barb.  34-5;  Mechan. 
Ins.  Co.  v.  Scott.  2  Hilt.  r)")0;   Maverick  v.  Lewis,  3  McCord,  216. 

110 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §    177 

after.1     Until  it  does  take  effect  in  possession,  the  lessee  has 
only  an  interesse  termini.2 

§  176.  The  rights  of  lessee  for  years. — As  a  general 
proposition,  the  lessee  is  entitled  to  all  the  rights  of  free- 
holders, which  arise  out  of  actual  possession,  including 
those  of  estovers,  fixtures,  and  the  modes  of  enjoyment  of 
the  land.3  But  the  estate  for  years  can  be  regulated  by 
agreement  of  parties  to  an  almost  unlimited  extent,  and  the 
rights  of  the  parties  under  a  lease  are  as  variant  as  the 
contracts.  There  are  few  if  any  rights  which  might  be 
considered  as  invariable  incidents  of  leaseholds. 

§  177.  How  created.  —  At  common  law  an  estate  for 
years  could  have  been  created  by  a  parol  contract.  But 
under  the  English  Statute  of  Frauds,  all  leases  for  more 
than  three  years  must  be  put  in  writing  and  signed  by  the 
parties;   otherwise,  they  shall  have  only  the  force  and  effect 


1  Williams  on  Real  Prop.  388;  Cadell  v.  Palmer,  10  Bing.  140;  Wild  v. 
Traip,  14  Gray,  333;  Whitney  v.  Allaire,  1  N.  Y.  311 ;  Field  v.  Howell,  6  Ga. 
423.  Sometimes  a  lease  contains  a  covenant  for  renewal.  Where  it  is  a  cove- 
nant for  an  indefinite  renewal,  it  has  been  held  to  be  a  void  agreement  within 
the  doctrine  of  perpetuity.  Morrison  v.  Rossignol,  5  Cal.  64.  Whether  this 
rule  would  be  adopted  generally,  is  a  matter  of  some  doubt.  Where  the 
covenant  for  renewal  is  on  the  part  of  the  lessor,  and  the  lessee  does  not 
expressly  bind  himself  to  accept  such  a  renewal,  the  performance  or  non-per- 
formance of  the  covenant  is  at  the  option  of  the  lessee,  and  he  cannot  be  com- 
pelled to  accept  a  renewal.  Bruce  v.  Fulton  National  Bank,  79  N.  Y.  154;  35 
Am.  Rep.  505. 

*  1  Washb.  on  Real  Prop.  439;  4  Kent's  Com.  97;  Doe  v.  Walker,  5  B.  & 
C.  311.  If  the  premises,  in  a  lease  commencing  in  futuro,  are  destroyed  before 
the  time  arrives  for  it  to  vest  in  possession,  the  tenant  is  under  no  liability  for 
rent.  The  very  subject-matter  of  the  contract  being  destroyed,  the  contract 
becomes  an  impossible  one,  and  the  parties  are  relieved  of  their  liability. 
Taylor  v.  Caldwell,  3  B.  &  S.  826;  Wood  v.  Hubbell,  10  N.  Y.  487. 

3  Kutter  v.  Smith,  2  Wall.  497;  Davis  v.  Buffum,  51  Me.  162;  Dingley  v. 
Buffum,  57  Me.  382 ;  Preston  v.  Briggs,  16  Vt.  124 ;  Riddle  v.  Littlefield,  33 
N.  H.  510;  Freer  v.  Stotenbur,  33  Barb.  642;  Dubois  v.  Kelly,  10  Barb.  490;. 
Mason  v.  Fenn,  13  111.  529.     See  ante,  sects.  69-82. 

Ill 


$     177  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

of  estates  at  will.1  Although  the  statutes  declare  such 
parol  leases  to  have  only  the  force  and  effect  of  estates  at 
will,  yet  in  those  States  in  which  the  doctrine  of  tenancies 
from  year  to  year  is  recognized,  they  would  be  construed 
to  be  tenancies  from  year  to  year,  if  the  tenant  enters  into 
possession  and  pays  rent,  and  in  all  the  States,  such  tenants 
would  have  a  right  to  the  statutory  notice  to  quit  before 
an  action  of  ejectment  can  be  maintained  against  them.2 
But  it  is  not  necessary  that  such  leases  should  be  under 
seal.3  The  statutes  of  the  different  States  are  similar  in 
their  general  provisions,  but  there  is  a  diversity  in  respect 
to  the  length  or  duration  of  those  leases,  which  will  be 
valid  without  writing;4  while  in  some  again,  the  writing  is 
required  to  be  under  seal,  or  in  other  words  to  be  a  deed.6 
If  the  lease  is  executed  by  an  agent,  according  to  the 
English  law,  and  that  of  some  of  the  States,  the  authority 
must  be  given  in  writing,  while  in  other  States,  the  writing 

1  1  Washb.  on  Real  Prop.  446,  447. 

2  Clayton  v.  Blakeley,  8  T.  R.  3;  Lockwood  o.  Lockwood,  22  Conn.  425; 
People  v.  Rickhert,  8  Cow.  226;  McDowell  v.  Simpson,  3  Watts,  129;  Drake 
v.  Newton,  3  N.  J.  Ill  ;  Kerr  v.  Clark,  19  Mo.  132;  Ridgeley  v.  Stillwell,  28 
Mo.  400.  And  as  long  as  possession  continues  under  a  parol  lease,  which  is 
void  under  the  Statute  of  Frauds,  the  rights  of  the  parties  will  be  governed 
by  the  terms  of  the  original  letting.  Doe  v.  Bell,  5  T.  R.  471;  Barlow  v. 
Wainwright,  22  Vt.  88;  Currier  v.  Barker,  2  Gray,  224. 

s  The  English  statute  has  been  re-enacted  in  Pennsylvania,  New  Jersey, 
Maryland,  North  Carolina,  South  Carolina,  Georgia,  and  Indiana.  In 
Florida,  leases  for  two  years  and  under  may  be  by  parol.  In  Alabama, 
Arkansas,  California,  Delaware,  Iowa,  Kentucky,  Michigan,  Mississippi,  New 
York,  Nevada,  Rhode  Island,  Tennessee,  Texas,  Virginia,  and  Wisconsin, 
the  term  is  one  year ;  while  in  Maine,  Massachusetts,  Missouri,  New  Hamp- 
shire, Ohio,  and  Vermont,  all  parol  leases  create  tenancies  at  will.  1  Washb. 
on  Real  Prop.  484,  note. 

4  Allen  v.  Jaquish,  21  Wond.  635;  Olmstead  v.  Niles,  7  N.  H.  526;  Den  v. 
Johnson,  15  N.  J.  L.  116;   1  Washb.  on  Real  Prop.  447. 

5  The  provisions  of  the  State  statutes  requiring  a  sealed  instrument  in  the 
grant  of  a  leasehold,  are  not  uniform.  Generally  it  is  provided  that  only  lc:i>.'s 
of  a  certain  duration  should  be  sealed.  See  Taylor's  L.  &  T.,  sect.  34  ;  Bratt 
v.  Bratt,  21  Md.  583;  Chandler  v.  Kent,  8  Minn.  626. 

112 


CH.  VII  ]  ESTATES    LESS    T1!A\    FREEHOLD.  §     179 

not  being  under  seal,  a  parol  power  of  attorney  will  be  suf- 
ficient.1 

§  178.  Form  of  instrument. — In  the  execution  of  a 
lease,  a  general  fo»m  of  deed,  more  fully  explained  here- 
after, is  usually  followed,  and  certain  terms  and  forms  of 
•expression  are  used.  But  any  form  of  deed,  and  any  terms 
or  mode  of  expression  will  be  sufficient  for  the  creation  of 
an  estate  for  years,  which  show  the  intention  of  the  lessor 
to  transfer  to  the  lessee  the  possession  of  the  land  during  a 
certain  determinate  period  of  time.  The  words  of  grant 
usually  employed  are  "  grant,"  "  demise,"  and  "  farm-let." 
"Do  lease,  demise,  and  farm-let,"  signify  generally  the 
creation  of  a  present  vesting  term,  and  not  a  future  or  con- 
tingent one,  but  this  implication  ma,r  be  controlled  by  the 
other  provisions  of  the  lease.2 

§  179.  Continued  —  Distinction  between  present  lease 
and  contract  for  future  one.  — It  is  sometimes  difficult  to 
determine  whether  the  instrument  is  a  present  lease,  or 
only  a  contract  for  a  future  one.  If  it  is  a  present  lease, 
the  parties  will  be  bound  by  its  implied,  as  well  as  express, 
provisions,  and  their  force  and  effect  cannot  be  altered  by 
parol  evidence,  showing  the  intentions  of  the  parties  to 
have  been  different.  Whereas,  if  the  instrument  was  only 
a  contract  for  a  future  lease,  it  is  not  the  final  repository 

1  1  Washb.  on  Real  Prop.  448,  note.  The  English  rule  has  been  adopted  in 
Alabama,  Arkansas,  Georgia,  Maryland,  Michigan,  Missouri,  New  Hamp- 
shire, New  Jersey,  New  York,  Ohio,  Pennsylvania,  South  Carolina,  and 
Wisconsin.  * 

2  So.  Cong.  Meet.  House  v.  Hilton,  11  Gray,  409;  White  v.  Livingston,  10 
Cush.  259;  Putnam  v.  Wise,  1  Hill,  244;  Jackson  v.  Delacroix,  2  Wend. 438; 
Walker  v.  Fitts,  24  Pick.  181 ;  Dingman  v.  Kelly,  7  Ind.  717 ;  Doe  v.  Ries,  8 
Bing.  182;  Doe  v.  Benjamin,  9  A.  &  E.  6-30.  "Shall  hold  and  enjoy"  have 
also  been  held  to  be  w<  rds  of  present  demise.  Doe  v.  Ashburner,  5  T.  R. 
168;  Moshier  v.  Reding,  12  Me.  135;  Wilson  v.  Martin,  1  Denio,  602;  Watson 
v.  O'Hern,  6  Watts,  362;  Moore  v.  Miller,  8  Pa.  St.  272. 

8  113 


§     179  ESTATES    LESS    THAX    FREEHOLD.  [PART  I. 

of  the  wishes  of  the  parties,  and  it  can  be  altered  or  amended 
to  effectuate  their  intention.1  The  ordinary  rule  of  con- 
struction is  that  where  the  agreement  leaves  nothing  further 
to  be  done  by  the  parties,  and  contains  directly,  or  by  ref- 
erence to  other  papers  or  records,  all  the  provisions  that 
are  necessary  to  a  valid  lease,  the  instrument  will  be  treated 
as  a  present  demise.2  And  even  where  a  fuller  lease  is  stip- 
ulated for,  although  this  clause  standing  alone  would  give 
to  the  agreement  the  character  of  a  contract  for  a  lease, 
yet  if  there  are  proper  words  of  present  demise,  the  cove- 
nant for  a  future  lease  will  be  treated  merely  as  a  covenant 
for  further  assurance,  and  the  agreement  will  take  effect  as 
a  present  demise.3  And  where  the  agreement  admits  of 
either  construction  the  acts  and  declaration  of  the  parties 
may  be  introduced,  as  indications  of  their  intention  and 
their  understanding  of  the  agreement.4 


1  1  Washb.  on  Real  Prop.  453. 

2  Kabley  v.  Worcester  Gas  Co.,  102  Mass.  394;  Shaw  v.  Farnsworth,  108 
Mass.  357.  See  Weed  v.  Crocker,  13  Gray,  219;  Hallettt*.  Wylie,  3  Johns. 
47 ;  Jackson  v.  Delacroix,  2  Wend.  433 ;  Averill  ».  Taylor,  8  N.  Y.  44 ; 
Morgan  v.  Bissell,  3  Taunt.  65 ;  Haven  v.  AVakefield,  39  111.  509. 

3  Alderman  v.  Neate,  4  M.  &  W.  "19;  Jackson  v.  Kisselbrack,  10  Johns. 
336;  Whitney  v.  Allaire,  1  N.  Y.  305;  The  People  v.  Gillis,  24  Wend.  201 ; 
Jackson  v.  Myers,  3  Johns.  395 ;  Bacon  v.  Bowdoin,  22  Pick.  401 ;  Jackson  v. 
Eldridge,  3  Story,  325;  Aiken  v.  Smith,  21  Vt.  172.  In  Buell  v.  Cork,  4  Conn. 
238,  it  was  held  to  be  a  contract  for  a  lease,  because  the  consent  of  a  third 
person  was  required  to  make  a  valid  lease ;  and  in  Jackson  v.  Delacroix,  2 
Wend.  433,  where  the  instrument  contained  a  statement  that  alterations  were 
expected  to  be  made  in  the  terms,  it  was  held  to  be  a  contract  for  a  future 
lease.  See  Poole  v.  Bentley,  12  East,  168 ;  Jones  v.  Reynolds,  1  Q.  B.  517  ; 
Doe  v.  Benjamin,  9  A.  &  E.  644;  Chapman  v.  Towner,  6  M.  &  W.  100.  In 
Thornton  v.  Payne,  5  Johns.  74,  the  court  say :  "  In  every  case  decided  in  the 
English  courts  where  agreements  have  been  adjudged  not  to  operate  by  passing 
an  interest,  but  to  rest  in  contract,  there  has  been  either  an  express  agreement 
for  a  future  lease,  or,  construing  the  agreement  to  be  a  lease  in  prcesenti 
would  work  a  forfeiture,  or  the  terms  have  not  been  fully  settled,  and  some- 
thing further  was  to  be  done."  The  presumption  is  always  in  favor  of  its 
being  a  present  lease,  instead  of  a  contract  for  a  future  lease. 

1  Chapman  v.  Black,  4  Bing.  N.  C.  187 ;  Alderman  v.  Neate,  4  M.  &  W- 
704 :  Doe  ».  Ashburner,  6  T.  R.  163. 

114  -     ' 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §     182 

§  180.  Acceptance  of  lease  necessary.  —  In  order  that 
the  lessor  may  be  divested  of  his  possession  and  of  his 
right  -  incident  to  possession,  and  the  lessee  be  bound  by 
the  term  of  the  lease,  acceptance  by  the  latter  must  be 
shown.  Where  it  operates  entirely  to  his  benefit,  his 
acceptance  may  be  presumed  ;  while  in  other  cases,  it  may 
be  inferred  from  acts,  such  as  entry  into  possession,  and  the 
like,  as  well  as  established  by  words  of  formal  acceot- 
ance.1 

§  181.  Relation  of  landlord  and  tenant.  —  As  soon  as 
a  lease  has  been  delivered  and  accepted  by  parties  compe- 
tent to  contract,2  a  relation  is  established  between  the  lessor 
and  lessee  which  is  known  as  that  of  landlord  and  tenant. 
A  privity  of  estate  and  a  tenure  are  established,  which  bind 
the  parties  to  each  other  in  respect  to  the  duties  imposed  by 
the  law  and  the  implied  covenants.  This  obligation  exists 
no  longer  than  does  the  relation  of  landlord  and  tenant, 
while  the  obligations  imposed  and  created  by  the  express 
terms  and  provisions  of  the  instrument  rest  upon  privity  of 
contract,  and  survive  the  dissolution  of  such  relation.3 

§  182.  Assignment  and  subletting.  — Unless  restrained 
by  a  covenant  or  changed  by  statute  the  lessee  can  assign  his 
term  or  grant  a  sublease  of  the  same,  without  let  or  hindrance 
of  the  lessor.4     And  a  restriction  against  assignment  does  not 

1  Maynard  v.  Maynard,  10  Mass.  456 ;  Hedge  v.  Drew,  12  Pick.  141 ; 
Kramer  v.  Cook,  7  Gray,  550;  Jackson  v.  Dunlap,  1  Johns.  Cas.  114;  Jackson 
v.  Bodle,  20  Johns.  184;  Jackson  v.  Eichards,  6  Cow.  617. 

2  See  post,  sects.  791,  792,  793,  809,  for  a  discussion  of  the  subjects,  delivery 
and  competency  of  parties. 

3  1  Washb.  on  Real  Prop.  468,  469. 

4  King  v.  Aldborough,  1  East,  597 ;  Roe  v.  Sales,  1M.&  Sel.  297 ;  Taylor's 
L.  &  T.  22 ;  1  Washb.  on  Real  Prop.  507,  508 ;  Cottee  v.  Richardson,  7  Ex. 
Rep.  143;  Brown  v.  Powell,  25  Pa.  St.  329;  Shannon  v.  Burr,  1  Hilt.  39; 
Den  v.  Post,  25  X.  J.  L.  285;  Robinson  v.  Perry,  21  Ga.  1S3;  Crommelin  v. 
Thiess,  31  Ala.  421. 

115 


§     182  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

prevent  a  subletting,  and  vice  versa.  The  restriction  must 
apply  expressly  to  both,  in  order  to  restrain  both.1  The 
assignment  or  sublease  is  subject  to  the  same  requirements 
of  the  Statute  of  Frauds,  as  the  original  lease.2  An  assign- 
ment is  effected,  whenever  the  entire  term  is  disposed  of, 
leaving  nothing  in  the  lessee  by  way  of  a  reversion.  And 
a  grant  will  be  considered  and  treated  as  an  assignment, 
whether  it  be  in  the  form  of  a  new  lease,  or  merely  a 
transfer  of  the  old  lease.  The  decisive  question  is,  whether 
there  is  a  reversion  left  in  the  lessee  ;  and  a  grant  of  a 
portion  of  the  premises  for  the  entire  term  would  be  an 
assignment,  and  not  a  sublease  of  such  portion.3  But  if 
the  whole,  or  only  a  part,  of  the  premises  be  demised  for  a 
term  of  shorter  duration  than  that  of  the  lessee,  it  is  a  sub- 
letting. And  the  most  inconsiderable  reversion,  such  as 
the  last  day  of  the  term,  would  be  sufficient  to  give  the 
grant  the  character  of  an  under-lease.4  It  has  been  held 
and  likewise  denied,  that  the  reservation  of  a  right  of  entry 
for  breach  of  a  condition  would  be  such  a  reservation  of  a 
reversion,  as  to  make  the  demise  a  subletting.  The  better 
opinion  is  that  a  right  of    entry  will  have  no  such  effect,  if 

1  Greenaway  v.  Adams,  12  Ves.  400;  Beardman  v.  Wilson,  L.  R.  4  C.  B. 
57;  Lynde  v.  Hough,  27  Barb.  415;  Den  r.  Post,  25  N.  J.  L.  285;  Field  v. 
Mills,  33  N.  J.  L.  254;  Hargrave  v.  King,  5  Ired.  Eq.  430. 

2  1  Washb.  on  Real  Prop.  508 ;  Williams  on  Real  Prop.  402. 

3  Palmer  v.  Edwards,  Dougl.  187,  note;  Parinenter  v.  Webber,  8  Taunt. 
593 ;  Boardman  v.  Wilson,  L.  R.  4  C.  B.  57 ;  Wollaston  v.  Hakewell,  3  M. 
&  G.  323;  Plush  v.  Digges,  5  Bligh  (n.  s.),  31  ;  Pollack  v.  Stacy,  9  Q.  B. 
1033;  Sanders  v.  Partridge,  Lynde  v.  Hough,  27  Barb.  415;  Patten  v.  Deshon, 
1  Gray,  325;  Sands  v.  Hughes,  53  N.  Y.  293:  Bedford  v.  Tcrhune,  30  N.  Y. 
457.  But  see  Fulton  v.  Stuart,  2  Ohio,  369,  and  McNiell  o.  Kendall,  128  Mass. 
245;  35  Am.  Rep.  373,  where  transfer  of  a  part  of  premises  for  the  whole 
term  was  considered  a  subletting. 

4  Post  v.  Kearney,  2  N.  Y.  394;  Collins  v.  Hasbrouck,  50  N.  Y.  157;  15 
Am.  Law  Rep.  407;  Astor  v.  Miller,  2  Paige,  OS;  Pingrey  v.  Watkins, 
15  Vt.  479;  Martin  u.  O'Connor,  43  N.  Y.  522;  Linden  v.  Hepburn,  3  Sandf. 
668 ;  Patten  v.  Deshon,  1  Gray,  325 ;  Parinenter  v.  Webber,  8  Taunt  593 ; 
Pollock  v.  Stacy,  9  Q.  B.  1033;  Derby  o.  Tavlor,  1  East,  502. 

llfi 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §    182 

the  whole  term  has  been  granted.1  If  the  demise  is  an 
assignment,  the  assignee  enters  into  the  privity  of  estate 
with  the  original  lessor  and  becomes  thereby  liable  to  him 
on  the  covenants  of  the  original  lease,  which  run  with  and 
bind  the  land.  But  his  liability  only  continues  during 
the  continued  maintenance  of  this  privity  of  estate,  and 
does  not  extend  to  breaches  occurring  before  assignment 
to  him  or  after  his  alienation  of  the  term.2  Actual  entry 
into  possession  is  not  necessary  to  attach  such  liability  to  the 
assignee  during  the  time  that  the  term  is  vested  in  him, 
except  that  in  some  States  actual  entry  is  required  in  order 
to  render  the  assignee  liable  on  the  covenant  for  rent.3 
Where  the  assignment  is  by  way  of  a  mortgage,  actual 
entry  is  always  necessary.4     If  the  demise  be  only  a  sub- 

1  That  the  reservation  of  a  right  of  entry  upon  failure  to  pay  rent  makes 
the  transfer  a  subletting,  see  Kearney  v.  Post,  1  Sandf.  105;  Martin  v.  O'Con- 
nor, 43  Barb.  522;  Linden  v.  Hepburn,  3  Sandf.  670.  In  the  following  cases 
the  rule  is  denied  2  Prcst.  Con  v.  124,  125;  Palmer  v.  Edwards,  Dougl.  187, 
note;  Doe  v.  Bateman,  2  B.  &  Aid.  168;  Lloyd  v.  Cozens,  2  Ashm.  138; 
Davis  ».  Morris,  36  N.  Y.  575 ;  Smiley  v.  Van  Winkle,  6  Cal.  605.  See  Bedford 
r.  Terhune,  30  N.  Y.  457;  Sanders  v.  Partridge,  108  Mass.  558.  In  a  note  to 
King  v.  Wilson,  5  Man.  &  R.  157,  note,  it  is  stated  that  there  is  "  neither 
principle  nor  authority,  to  preclude  such  termor  from  making  an  underlease 
for  a  period  commensurate  in  point  of  computation  with  the  original  term." 

2  Stevenson  v.  Lambard,  2  East,  575;  Burnett  v.  Lynch,  5  B.  &  C.  589; 
University  of  Vermont  v.  Joslyn,  21  Vt.  52;  Howland  v.  Coffin,  12  Pick.  125; 
Graham  v.  Way,  38  Vt.  19;  Davis  v.  Morris,  36  N.  Y.  576;  Jackson  v.  Davis,  5 
Cow.  129;  McKeon  v.  Whitney,  3  Denio,  452;  Benson  v.  Bolles,  8  Wend. 
175;  Barroilhet  v.  Battele,  7  Cal.  450;  Grandinw.  Carter,  99  Mass.  16;  Sanders 
v.  Partridge,  108  Mass.  556;  Walton  v.  Cronly,  14  Wend.  62;  Quackenboss  v. 
Clark,  12  Wend.  557;  Armstrong  v.  Wheeler,  9  Cow.  89;  Patten  v.  Deshon, 
1  Gray,  329;  Johnson  v.  Sherman,  15  Cal.  287. 

8  Felch  v.  Taylor,  13  Pick.  139;  Bagley  v.  Freeman,  1  Hilt.  196;  Smith 
v.  Brinker,  17  Mo.  148.  In  New  York,  entry  into  possession  is  necessary,  to 
render  liable  on  covenant  for  rent.  Damainville  v.  Mann,  32  N.  Y.  197.  In 
Massachusetts  the  assignee  is  liable  for  rent  without  entry,  if  the  assignment 
is  by  deed.  Sanders  v.  Partridge,  108  Mass.  656.  In  Illinois  entry  is  never 
necessary.     Babcock  v.  Scoville,  56  111.  466. 

*  Williams  v.  Bosanquet,  1  Brod.  &  B.  238;  Felch  v.  Taylor,  13  Pick.  133; 
Pingrey  v.  Watkins,  15  Vt.  488;  Graham  v.  Way,  38  Vt.  24;  McMurphy  v. 
Minot,  4  N  H.  251 ;    Walton  v.  Cronly,  14  Wend.  63 ;  Astor  v.  Hovt.  5  Wend. 

117 


§     182  ESTATES    LESS    THAN    FREEHOLD.  PART.    II. J 

lease,  the  privity  of  estate  between  the  lessee  and  the 
original  lessor  is  still  maintained,  and  the  sublessee  is  only 
liable  to  the  intermediate  lessor  on  the  covenants  in  the 
lease  between  them.  And  a  reservation  of  rent  by  the 
intermediate  lessor,  if  it  is  an  assignment,  will  not  give  him 
a  right  to  distrain  for  it.  His  remedy  is  an  action  to  re- 
cover on  the  covenant.1 

§  1<S3.  Involuntary  alienation. — A  leasehold  estate  is 
also  subject  to  sale  under  execution,  and  under  the  bank- 
rupt and  insolvent  laws  passes  to  the  assignee,  like  other 
personal  property,  for  the  satisfaction  of  the  lessee's  debts.2 
And  such  assignees  become  liable  on  the  covenants  of  the 
lease,  if  they  accept  the  assignment,  and  exercise  the  rights 
of  ownership  over  it.3  But  the  assignees  have  the  right 
within  a  reasonable  time  to  elect  whether  they  shall  accept 

603;  Astor  v.  Miller,  2  Paige,  68;  McKee  v.  Angelrodt,  16  Mo.  283.  In 
Maryland,  entry  is  not  necessary.  May  hew  v.  Hardisty,  8  Md.  479.  See  also, 
Calvert  v.  Bradley,  16  How.  (U.  S.)  5'.K>;  Johnson  v.  Sherman,  15  Gal.  287. 

1  Hicks  i\  Dowling,  1  Ld.  Raym.  99;  Parmenter  o.  Webber,  8  Taunt.  593; 
Bedford  v.  Terhune,  30  N.  Y.  458;  Davis  o.  Morris,  36  N.  Y.  574.  In  order 
that  the  assignee  may  be  protected  against  an  ouster  by  the  original  lessor, 
for  failure  of  the  lessee  to  pay  the  rent  due  him,  it  has  been  held  that,  before 
the  lessee  can  recover  of  his  assignee,  he  must  show  that  the  lessor's  claim 
has  been  satisfied.  Farrington  v.  Kimball,  12»>  Mass.  313;  30  Am.  Rep.  680. 
And  if  the  rent  reserved  in  the  second  lease  be  larger  than  what  is  reserved  in 
the  first,  the  parties  may,  by  agreement,  provide,  that  the  lessee  shall  recover 
only  the  difference,  while  the  sublessee  pays  the  original  rent  to  the  lessor. 
Wollaston  v.  Hakewell,  3  M.  &  G.  323;  Smith  o.  Mapleback,  1  T.  R.  441. 
But  without  express  agreement,  the  lessor  cannot  sue  the  sublessee  for  rent. 
There  is  neither  privity  of  estate,  nor  privity  of  contract,  between  them  to 
sustain  the  action.  Halford  v.  Hatch,  Dougl.  187;  Gramlin  v.  Carter,  98 
Mass.  16;  Dartmouth  College  v.  Clough,  8  N.  II.  22;  BlcFurlanv.  Watson, 
3  N.  Y.  28i).  But  if  the  original  lease  is  surrendered  to  the  lessor,  without 
prejudice  to  under-lessees,  the  lessor  may  recover  subsequently  accruing  rent 
from  the  sublessees.  Beal  v.  Boston,  etc.,  Car  Co..  125  Mass.  157;  28  Am. 
Rep.  216. 

2  Williams  on  Real  Prop.  404;  Williams  on  Pers.  Prop.  (9th  ed.)  56. 

8  White  v.  Hunt,  L.  R.  6  Exch.   32;    Quackenboss  v.  Clarke,   12   Wend. 
655 ;  1  Washb.  on  Real  Prop.  523,  524. 
118 


CH.  VII.  ESTATES    LESS    THAN    FREEHOLD.  §    185 

or  reject  the  lease.  The  mere  fact  that  the  lease  is  properly 
included  in  the  assignment  will  not  render  them  liable  on 
the  covenants.2  Involuntary  alienation  may  be  prevented, 
if  it  is  explicitly  stated  in  the  lease,  that  such  a  mode  of 
alienation  will  work  a  forfeiture  of  the  term.2  But  a 
simple  restriction  against  alienation  does  not  apply  to 
involuntary  alienation.  Nothing  short  of  an  actual  and 
voluntary  transfer  of  the  lessee's  estate  will  ordinarily  be 
considered  a  breach  of  a  condition  or  covenant  against 
assignment.3 

§    184.  Disposition  of  terms  after  death  of  tenant.  — A 

term,  like  other  personal  property,  can  be  bequeathed,  or  if 
the  tenant  dies  without  making  any  disposition,  it  descends 
to  the  executor  or  administrator,  who  takes  it  and  disposes  of 
it  like  any  other  chattel,  unless  the  restriction  against  aliena- 
tion expressly  includes  the  personal  representatives  in  such 
prohibition.4  And  the  right  to  devise  a  leasehold  is  not 
taken  away  by  a  general  condition  in  restraint  of  aliena- 
tion, although  it  may  be  by  express  limitation.5 

§    185.   Covenants    in    a    lease    in    general.  —  In  strict, 

1  Smythe  v.  North,  L.  K.  7  Exch.  242;  Carter  v.  Warne,  4  C.  &  P.  191; 
Copeland  v.  Stephens,  1  B.  &  Aid.  593;  Pratt  v.  Levan,  1  Miles,  358;  Blake 
v.  Sanderson,  1  Gray,  332;  Journegy  v.  Brackley,  1  Hilt.  448;  Kendrick  v. 
Judas,  2  Caines,  25;  Carter  v.  Hammett,  18  Barb.  608;  Sparkawk  v.  Broome, 
-6  Binn.  256 ;  Dorrance  v.  Jones,  27  Ala.  630. 

2  Roe  b.  Galliers,  2  T.  R.  133 ;  Davis  v.  Eyton,  7  Bing.  154.  See  Doe  v. 
Hawks,  2  East,  481;  Doe  v.  Clark,  8  East,  185;  Doe  v.  David,  5  Tyrw.  125; 
Cooper  v.  Wyatt,  5  Madd.  482 ;  Yarnold  v.  Moorhouse,  1  R.  &  My!.  346. 

3  Philpot  v.  Hoare,  2  Atk.  219;  Doe  v.  Bevan,  3  M.  &  S.  353;  Doe  v.  Car- 
ter, 8  T.  R.  300;  Lear  v.  Leggett,  1  Russ.  &  M.  690;  Smith  v.  Putnam,  3  Pick. 
221 ;  Jackson  v.  Corlis,  7  Johns.  531 ;  Moore  v.  Pitts,  53  N.  Y.  85 ;  Collins  v. 
Hasbrouck,  56  N.  Y.  157 ;  15  Am.  Rep.  407 ;  Hargrave  v.  King,  5  Ired.  Eq. 
430.  But  a  voluntary  assignment  under  the  bankrupt  and  insolvent  laws  is 
not  an  involuntary  alienation.     See  1  Pars,  on  Con.  506. 

*  Taylor's  L.  &  T.,  sect.  408;  Seers  v.  Hind,  1  Ves.  jr.  295;  Keating  v. 
Condon,  68  Pa.  St.  75 ;  1  Washb.  on  Real  Prop.  579. 

5  Fox  v.  Swann,  Styles,  483 ;  Berry  v.  Taunton,  Cro.  Eliz.  331 ;  Dumpor  v. 
Symmons,  lb.  816 

119 


§    186  ESTATES    LESS    THAN   FREEHOLD  [PART    I. 

technical  language,  a  covenant  is  any  agreement  which  is 
executed  under  the  solemnity  of  a  seal ;  but  in  this  connec- 
tion it  is  used  to  signify  the  agreements  which  appear  in  a 
lease,  and  which  bind  the  parties  thereto,  whether  the  lease 
is  under  seal  or  not.1 

§   186.   Continued  —  Express  and  implied  covenants. — 

Covenants  may  be  express  or  implied.  There  is  apparently 
no  restriction  upon  the  number  and  character  of  the  express 
covenants  which  may  be  inserted  in  a  lease.  The  parties 
may  by  them  change  altogether  their  common-law  liability 
under  the  lease,  and  substitute  for  the  general  rule  of  law 
express  limitations  and  obligations.2  Implied  covenants  are 
those  which  arise  by  construction  of  law  from  the  employ- 
ment of  certain  words  and  forms  of  expression,  such  as 
"grant,"  "lease,"  "  demise,"  etc.3  An  important  distinc- 
tion exists  between  express  and  implied  covenants  in  respect 
to  the  effect  of  assignment  of  the  lease  upon  the  liability  of 
the  lessee.  He  remains  bound  by  all  the  express  covenants 
contained  in  the  lease.     His  liability  under  them  rests  upon 

1  Hayne  v.  Cummings,  16  C.  B.  (x.  s.)  426.  No  reference  is  made  here  to 
the  common-law  form  of  the  action  to  be  used  in  the  enforcement  (if  covenants 
in  leases.  The  action  of  covenant  would  lie  only  in  the  case  of  an  agreement 
under  seal,  signed  and  sealed  by  the  covenantor.  See  Goodwin  v.  Gilbert,  9 
Mass.  510;  Pike  v.  Brown,  7  Cush.  133;  Johnson  v.  Mussey.  45  Vt.  419; 
Hinsdale  v.  Humphrey,  15  Conn.  431 ;  Gale  v.  Nixon,  6  Cow.  445;  Maule  tv 
Weaver,  7  Pa.  St.  329. 

2  1  Washb.  on  Real  Prop.  505. 

3  1  Washb.  on  Real  Prop.  487.  But  the  tendency  of  modern  decisions  is 
against  implying  covenants,  which  might  have  been  expressed,  and  this  is 
particularly  the  case  where  the  deed  appears  to  contain  all  the  stipulations 
and  conditions  which  the  parties  intended.  See  Aspden  v.  Austin,  5  Ad.  & 
El.  (n.  s.)  684;  Sheets  v.  Selden,  7  Wall.  423.  It  has  been  held  that  the 
covenant  for  quiet  enjoyment  is  implied  from  the  use  of  any  operative  words. 
Mack  v.  Patchin,  42  N.  Y.  167 ;  1  Am.  Rep.  506.  But,  generally,  "lease" 
and  "demise"  are  the  only  words  which  will  raise  implied  covenants.  See 
Tone  v.  Bruce,  8  Paige,  597;  Mayor  v.  Mabie,  13  N.  Y.  160:  Maule  v. 
Ashmead,  20  Pa.  St.  482;  Lovering  v.  Lovering,  13  N.  H.  518;  Hamilton  v. 
Wright,  28  Mo.  199;  Wade  v.  Halligan,  16  111.  507  ;  Playter  v.  Cunningham, 
21  Cal.  233. 

120 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §     187 

express  personal  obligation.  But  the  liability  under  an 
implied  covenant  arises  from  the  privity  of  estate  created 
between  the  parties  by  the  possession  of  the  lessee  under 
the  lease.  The  lessee's  liability,  therefore,  on  implied 
covenants  determines  with  the  destruction  of  the  privity  by 
assignment  or  otherwise.1  Acceptance  of  the  assignee  as  a 
tenant  by  the  original  lessor  is  necessary  in  order  to  absolve 
the  lessee  from  his  liability  for  rent  under  an  implied 
covenant.2  The  following  covenants  are  usually  implied 
in  every  lease. 

§  187.  Implied  covenant  for  quiet  enjoyment.  — This  is 
a  covenant  for  the  quiet  enjoyment  of  the  premises  by  the 
lessee.  It  is  not  an  absolute  covenant  for  the  protection  of 
his  possession  against  the  acts  of  the  whole  world.  It 
extends  only  to  the  acts  of  the  landlord  and  of  strangers 
asserting  a  paramount  title.  The  lessor  does  not  warrant 
against  the  acts  of  strangers  who  do  not  claim  a  superior 
title.3 

1  Auriol  v.  Mills,  4  T.  R.  98 ;  Thursby  v.  Plant,  1  Saund.  241  b ;  Way  v. 
Reed,  6  Allen,  364 ;  Kimpton  v.  Walker,  9  Vt.  199 ;  Kunckle  v.  Wynick,  1 
Dall.  305 ;  Walker  v.  Physick,  5  Pa.  St.  193 ;  Waldo  v.  Hall,  14  Mass.  486 ; 
Sutliffe  v.  Atwood,  15  Ohio  St.  186;  Wall  v.  Hinds,  4  Gray,  250;  Blair  v. 
Rankin,  11  Mo.  440;  Post  v.  Jackson,  17  Johns.  239;  Quackenboss  v.  Clark, 
12  Wend.  556;  Ghegan  v.  Young,  23  Pa.  St.  18;  Howland  v.  Coffin,  12  Pick. 
125 ;  Bailey  v.  Wells,  8  Wis.  141 ;  Lodge  v.  White,  30  Ohio  St.  569 ;  27  Am. 
Rep.  492. 

2  Auriol  v.  Mills,  4  T.  R.  98 ;  Thursby  v.  Plant,  1  Saund.  240 ;  Fletcher  v. 
McFarlane,  12  Mass.  43 ;  Wall  v.  Hinds,  4  Gray,  256. 

3  Morse  v.  Goddard,  13  Mete.  177 ;  Ross  v.  Dysart,  33  Pa.  St.  452 ;  Moore  v. 
Webber,  71  Pa.  St.  429;  10  Am.  Rep.  708;  Edgerton  v.  Page,  1  Hilt. 
333;  Dexter  v.  Manley,  4  Cush.  24;  Sherman  v.  Williams,  113  Mass.  481 ;  18 
Am.  Rep.  522;  Mack  v.  Patchin,  42  N.  Y.  167;  1  Am.  Rep.  506;  Schil- 
ling v.  Holmes,  23  Cal.  230;  Branger  v.  Manciet,  30  Cal.  626;  Lovering 
v.  Lovering,  13  N.  H.  518;  Wade  v  Halligan,  16111.  507;  Hamilton  v.  Wright, 
28  Mo.  199;  Schuylkill,  etc.,  R.  R.  v.  Schmoele,  57  Pa.  St.  273.  There  is  an 
implied  covenant  for  quiet  enjoyment  in  the  grant  of  an  incorporeal,  as  well 
as  of  a  corporeal,  hereditament.  Mayor  v.  Mabie,  13  N.  Y.  157.  To  support 
the  implied  covenant,  the  lease  must  be  a  valid  one.  Webster  v.  Conley,  46. 
HI.  17. 

121 


§     189  ESTATES    LESS    THAN    FEEEHOLD.  [PAST    I. 

§  188.  Implied  covenant  for  rent.  —  The  covenant  for 
rent  is  implied  from  the  very  reservation  in  the  lease  of  a 
certain  stipulated  sum.  This  implied  covenant  is,  of  course, 
separate  and  distinct  from  any  express  contracts  the  lessor 
may  enter  info.1 

§  189.  Implied  covenant  against  waste.  —  By  the  very 
acceptance  of  the  lease,  the  lessee  assumes  an  implied  obli- 
gation to  use  the  premises  in  a  husbandlike  manner,  and  to 
keep  the  buildings  and  other  structures  in  repair ;  and  a 
failure  on  his  part,  to  do  so,  subjects  him  to  an  action  of 
waste.2  The  lessor,  in  the  absence  of  an  express  covenant, 
is  not  bound  to  make  repairs  upon  the  leased  premises. 
But  if  he  does  undertake  to  make  such  repairs,  he  is  bound 
by  an  implied  covenant  to  do  it  in  a  workmanlike  manner, 
without  injury  to  the  lessee3  The  lessor  or  lessee  may 
enter  into  express  covenants  for  the  repair  of  the  premises 
under  all  circumstances,  and  an  unqualified  covenant  of  this 
kind  will  obligate  the  covenantor  to  repair,  whatever  may 
have  caused  the  damage.4     But  the  implied  covenant  of  the 

1  Kimpton  v.  Walber,  9  Vt.  198 ;  Van  Rensselaer  v.  Smith,  27  Barb.  140 ; 
Royer  v.  Ake,  3  Pa.  St.  461 ;  1  Washb.  on  Real  Prop.  492. 

2  Thorndike  v.  Burrage,  111  Mass.  532 ;  Nave  v.  Berry,  22  Ala.  382 ;  1 
Washb.  on  Real  Prop.  492.  See  ante,  sect9.  72-80,  as  to  what  acts  constitute 
waste. 

3  Gott  b.  Gaudy,  22  Eng.  Law  &  Eq.  173;  Sheets  v.  Selden,  7  Wall.  423; 
Leavitt  v.  Fletcher,  10  Allen,  121 ;  Gill  v.  Middleton,  105  Mass.  478 ;  Elliott 
v.  Aiken,  45  N.  H.  36;  Doupe  v.  Gerrin,  45  N.  Y.  119;  6  Am.  Rep.  47; 
Post  v.  Vetter,  2  E.  D.  Smith,  248 ;  Estep  v.  Estep,  23  Ind.  114.  There  is  no 
implied  covenant  on  the  part  of  the  landlord,  that  the  premises  are  in  a 
tenantable  condition.  Jaffe  v.  Harteaa,  56  N.  Y.  398;  15  Am.  Rep.  438. 
But  although  the  landlord  is  not  under  obligation  to  tenant  to  repair,  if  the 
tenant  does  not  repair,  and  injury  results  to  third  persons,  the  landlord  has 
been  held  liable.   Marshall  v.  Cohen,  44  Ga.  489;  9  Am.  Rep.  170. 

*  Walton  v.  Waterhouse,  2  Saund.  422;  Abby  v.  Billups,  35  Miss.  618; 
Phillips  v.  Stevens,  16  Mass.  238;  Leavitt  v.  Fletcher,  10  Allen,  121 ;  Warner 
v.  Hitchins,  5  Barb.  666;  Hoy  v.  Holt,  91  Pa.  St.  88;  36  Am.  Rep.  559; 
Gibbon  v.  Eller,  13  Ind  128.  But  where  an  ordinance  of  a  city,  passed  subse- 
quently, prohibits  the  erection  of  wooden  buildings,  the  covenantor  in  a  cove- 

122 


€H.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §     TOO 

lessee  extends  only  to  repairs  made  necessary  by  the  negli- 
gence of  the  lessee.  If  he  uses  the  land  in  a  husbandlike 
manner,  he  is  not  liable  to  repair  any  damage  done  by  the 
elements  or  strangers  without  his  fault.1 

§  190.  Covenants  running  with  land.  —  If  the  covenant 
is  beneficial  only  to  the  owner  of  the  land,  whether  he  be 
the  tenant  of  the  freehold  or  of  the  term,  and  relates  to 
the  preservation  or  improvement  of  the  land,  it  runs  with 
the  land,  passes  to  the  assignee  of  the  lessor  or  lessee,  as 
the  case  may  be,  and  can  be  enforced  by  him.2  A  covenant 
is  said  to  run  with  the  land,  so  as  to  bind  assignees,  when 
it  relates  to  the  management  and  conduct  of  the  land,  or 
where  its  performance  forms  a  part  of  the  original  consid- 
eration upon  which  the  lease  rests.3  The  usual  covenants 
running  with  the  land  are  those  for  quiet  enjoyment ; 4  to 

nant  to  rebuild  a  wooden  building  is  thereby  released  from  the  obligation  to 
perform.  Cordes  v.  Miller,  39  Mich.  581 ;  33  Am.  Law  Rep.  430.  And  a  cove- 
nant to  erect  a  new  building  does  not,  by  implication,  include  the  rebuilding 
of  it  after  destruction  by  fire  or  otherwise.  Cowell  v.  Lumley,  39  Cal.  151;  2 
Am.  Rep.  430. 

1  Wells  v.  Castles,  3  Gray,  323 ;  Leavitt  v.  Fletcher,  10  Allen,  121 ;  Post  v. 
Vetter,  2  E.  D.  Smith,  248 ;  Warner  v.  Hitchins,  5  Barb.  666 ;  Elliott  v.  Aikin, 
45  N.  H.  36;  Gibson  v.  Eller,  13  Ind.  128. 

2  Spencer's  Case,  5  Rep.  16;  1  Smith's  Ld.  Cas.  139;  Vyvyan  v.  Arthur,  1 
B.  &C.  410;  Patton  v.  Deshon,  1  Gray,  325;  Howland  v.  Coflan,  12  Pick.  125; 
Van  Rensselaer  v.  Hays,  19  N.  Y.  81 ;  Van  Rensselaer  v.  Smith,  27  Barb.  151 ; 
Nicholl  v.  N.  Y.  &  Erie  R.  R.,  12  N.  Y.  131 ;  Streaper  v.  Fisher,  1  Rawle,  161 ; 
Cook  v.  Brightley,  46  Pa.  St.  445 ;  Scott  v.  Lunt,  7  Pet.  606 ;  Baldwin  v. 
Walker,  21  Conn.  168;  Crawford  v.  Chapman,  17  Ohio,  449;  Plumleigh  v. 
Cook,  13  111.  669.  In  Illinois,  the  assignee  of  the  covenantor's  estate  cannot 
sue  on  the  covenant  in  his  own  name  unless  the  covenantee  has  attorned  to 
him.  Fisher  v.  Deering,  60111. 114.  And  at  no  time  has  it  been  permitted  of 
the  assignee  to  sue  for  breaches  of  the  covenant  occurring  before  assignment. 
Lewis  v.  Ridge,  Cro.  Eliz.  863 ;  Gibbs  v.  Ross,  2  Head,  437 ;  1  Washb.  on  Real 
Prop.  498. 

8  Morse  v.  Aldrich,  19  Pick.  749;  Piggot  v.  Mason,  1  Paige  Ch.  412; 
Norman  u.  Wells,  17  Wend.  136 ;  DeForrest  v.  Byrne,  1  Hilt.  43 ;  Jackson  v. 
Langhead,  2  Johns.  7-3;  Wooliscroft  v.  Norton,  15  Wis.  204;  Blackmore 
v.  Boardman,  28  Mo.  4:20;  Gordon  v.  George,  12  Ind.  408. 

*  Campbell  v.  Lewis,  3  B.  &  Aid.  392;  Williams  v.  Burrell,  1  C.  B.  433; 
Shelton  v.  Codman,  3  Cush.  318;  Markland  v.  Cramp,  1  Dev.  &  B.  94. 

123 


§     1.91  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

insure  ;l  to  repair  ;2  to  pay  rent; 3  to  pay  taxes; 4  to  renew 
the  lease.5  A  covenant  for  lessor  to  pay  for  improvements- 
passes  to  the  assignee  of  the  lessee,  but  does  not  bind  the 
assignee  of  the  reversion.6  Covenants  which  relate  to  a 
subject-matter  not  in  esse,  as  for  the  erection  of  a  new 
building  upon  the  premises,  do  not  run  with  the  land  so  as 
to  bind  assignees,  unless  they  are  expressly  named  therein." 
On  the  other  hand,  if  the  covenant  be  of  a  collateral  nature, 
i.e.,  to  the  land,  it  is  a  personal  obligation,  and  does  not  run 
with  the  land.  And  if  it  is  incapable  in  law  of  attaching 
to  the  estate,  it  will  not  bind  or  enure  to  assignees,  even 
though  they  are  expressly  named.8 

§  191.  Conditions  in  leases. — In  connection  with  the 
covenants  in  a  lease,  it  may  be  provided  that  the  breach  of 
the  covenant  will  work  a  forfeiture  of  the  estate,  and  give 
the  covenantee  the  right  of  entry  upon  the  land.  But  the 
breach  of  a  covenant  will  not  work  a  forfeiture,  unless  the 
right  of  entry  is  expressly  reserved.9     The  attachment  of  a 

1  Vernon  v.  Smith,  5  B.  &  Aid.  1. 

2  Spencer's  Case,  5  Rep.  16;  1  Smith  Ld.  Cas.  139;  Demarest  v.  Wil- 
lard,  8  Cow.  206;  Pollard  v.  Shaffer,  1  Dall.  210;  Taffo  v.  Harteau,  56 
N.  Y.  398 ;  15  Am.  Rep.  438. 

8  Graves  v.  Potter,  11  Barb.  592 ;  Main  v.  Feathers,  21  Barb.  646 ;  Dem- 
arest v.  Willard,  8  Cow.  206;  Howland  v.  Coffin,  12  Pick.  125;  Hurst  p. 
Rodney,  1  Wash.  C.  Ct.  3?5. 

*  Astor  v.  Miller,  2  Paige,  68;  Host  v.  Kearney,  2  N.  Y.  394. 

6  P'gg°t  "•  Mason,  1  Paige,  412 ;  Renond  v.  Daskam,  34  Conn.  512 ;  Black- 
more  v.  Boardman,  28  Mo.  420.  But  see  West.  Transp.  Co.  v.  Landing,  49 
N.  Y.  499. 

6  Hunt  v.  Danforth,  2  Curt.  592.     See  next  note. 

7  Spencer's  Case,  5  Rep."  16;  1  Smith  Ld.  Cas.  189;  Congleton  v.  Pattison, 
10  East,  138;  Sampson  v.  Easterly,  9  B.  &  C.  505;  Tallman  v.  Coffin,  4 
N.  Y.  134;  Masury  v.  Southwbrth,  9  Ohio  St.  340;  Boan  v.  Dickerson,  2 
Humph.  126;  Hanson  v.  Mejer,  81  111.  321 ;  25  Am.  Rep.  282. 

8  Spencer's  Case,  5  Rep.  16;  1  Smith's  Ld.  Cas.  139:  Kcppell  o.  Bailey,  2 
Mylne  &  R.  517;  Masury  v.  Southworth,  9  Ohio  St.  340.  See  Vyvyan  «. 
Arthur,  1  B.  &  C.  410;  Aiken  v.  Albany  R.  R.,  26  Barb.  289. 

9  Doev.  Jepson,  3  B.  &  Aid.  402;  Jones  v.  Carter  15  M.  &  W.  718; 
Clark  v.  Jones,   1  Denio,  516;   Delancey  v.  G-anong,  9  N.  Y.  9;  Wheeler  e» 

124 


<CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §    192 

condition  of  forfeiture  to  a  covenant  does  not,  however, 
interfere  with  a  resort  to  the  ordinary  remedies  on  the  cove- 
nant.1 Like  all  other  conditions,  they  can  only  be  reserved 
to  the  landlord  and  his  assigns,  and  they  alone  can  take 
advantage  of  the  breach.  If  they  elect  to  waive  the  for- 
feiture, the  estate  continues  with  all  the  obligations  attached 
thereto.2  The  subject  of  estates  upon  condition  is  treated 
more  specifically  in  a  subsequent  chapter,  to  which  reference 
must  be  made,  to  ascertain  in  detail  the  effect  of  a  breach 
of  a  condition. 

§  192.  Rent  reserved.  —  Although  not  necessary  to  the 
validity  of  a  lease,  it  is  customary  and  usual  to  reserve  a 
rent  to  be  paid  by  the  lessee,  and  its  payment  is  enforced  by 
the  insertion  of  an  express  covenant,  or  such  a  covenant  is 
implied  from  its  reservation.  The  covenant  for  rent  passes 
with  the   assignment  of    the   reversion  to   the    assignee.3 

Earl,  5  Cush.  31 ;  Den  v.  Post,  25  N.  J.  L.  292 ;  Dennison  v.  Keed,  3  Dana, 
686;  Brown  v.  Bragg,  22  Ind.  123.  But  the  presumption  of  law  is  always 
against  the  attachment  of  a  condition  ;  the  condition  must  be  clearly  expressed, 
in  order  to  attach  to  the  covenant.  Doe  v.  Phillips,  2  Bing.  13;  Spear  v. 
Fuller,  8  N.  H.  174 ;  Wheeler  v.  Dascombe,  3  Cush.  285 ;  Burnes  v.  McCubbin, 
3  Kan.  226.  And  conditions  are  always  liberally  construed  in  favor  of  the 
covenantor  or  tenant,  and  strictly  against  the  grantor.  Doe  v.  Bond,  5  B.  & 
C.  855;  Pillot  v.  Boosey,  11  C.  B.  (n.  s.)  885;  Spear  v.  Fuller,  8  N.  H.  174; 
Mattice  v.  Lord,  30  Barb.  38 ;  Palethorp  v.  Bergner,  52  Pa.  St.  149 ;  Mackubin 
v.  Whetcroft,  4  Harr.  &  McH.  135;  Lawrence  v.  Knight,  11  Cal.  298. 

1  See  Rowe  v.  Williams,  97  Mass.  165. 

2  Morton  v.  Woods,  L.  R.  4  Q.  B.  303 ;  18  Am.  Law  Rep.  525 ;  Shumway 
v.  Collins,  6  Gray,  231 ;  Way  v.  Reed,  6  Allen,  364 ;   Bemis  v.   Wilder,  100 
Mass.  446;  Clark  v.  Jones,  1  Denio,  617.     An  express  license  to  break  the 
covenant  will  constitute  an  absolute  waiver  of  the  condition,  and  the  cove- 
nantee cannot  enter  for  any  subsequent  breach.     Dumpor's  Case,  4  Rep.  119 
Cartwright  v.  Gardner,  5  Cush.  281 ;    Bleecker  v.  Smith,   13  Wend.  530 
Murray  v.  Harway,  56  N.  T.  343  ;  Dickey  v.  McCullough,  2  Watts  &  S.  88 
Chipman  v.  Emesic,  5  Cal.  49.    But  a  mere  acquiescence  in  the  breach,  or  a 
failure  to  enter  for  it,  will  not  discharge  the  condition.     Doe  v.  Bliss,  4  Taunt. 
735;  Ireland  v.  Nichols,  46  N.  Y.  413. 

3  Scott  v.  Lunt,  7  Pet.  590 ;  Kempton  v.  Veker,  9  Vt.  198 ;  Gale  v.  Edwards, 
62  Me.  365 ;  Van  Rensselaer  v.  Smith,  27  Barb.  140 ;  Main  v.  Feathers,  21  Barb. 
646 ;  Royer  v.  Ake,  3  Pa.  St.  461 ;  Howland  v.  Coffin,  12  Pick.  125 ;  Burden  v. 

125 


§    192  ESTATES    LESS    THAN    FREEHOLD  [PART    I. 

If  the  reversion  be  divided  up,  and  portions  of  the  same 
are  assigned  to  different  parties,  the  rent  will  be  appor- 
tioned between  them.1  The  same  rule  of  apportionment 
prevails  where  the  reversion  descends  to,  and  is  partitioned 
between,  two  or  more  heirs.2  In  such  cases  it  is  question- 
able, if  the  assignee  of  a  part  of  the  reversion  can  sue  for 
his  aliquot  share  of  the  rent  in  his  own  name,  without  join- 
ing with  the  others.3  But  the  reversioner  may  sever  the 
right  to  the  rent  from  the  reversion.  He  may  assign  them 
to  different  parties,  or  he  may  assign  one  and  retain  the 
other,  and  the  holder  of  the  rent  may  sue  on  the  covenant 
even  though  he  has  no  reversion  in  him.4     But  in  the  assign- 

Thayer,  3  Mete.  76 ;  Keay  v.  Goodman,  16  Mass.  1 ;  Demarest  v.  Willard,  8 
Cow.  206;  Hurst  v.  Rodney,  1  Wash.  C.  Ct.  375;  York  o.  Jones,  2  X.  H.  L54; 
Kimball  v.  Pike,  18  N.  11.420;  Johnston  v.  Smith,  3  Pa.  St.  496;  Van  Rens- 
selaer v.  Gallup,  5  Denio,  450;  Farley  v.  Craig,  10  N.J.  L.  262  j  Wilson  v. 
Delaplaine,  3  Harr.  499;  Snyder  v.  Riley,  1  Spears,  272;  Gibbs  v.  Ross,  2 
Head,  437. 

1  Montague  v.  Gay,  17  Mass.  439;  Mellis  v.  Lathrop,  22  Wend.  121 ;  Burns 
v.  Cooper,  31  Pa.  St.  428;  Reed  r.  Ward,  22  Pa.  St.  144;  Peck  v.  Northrup, 
17  Conn.  217;  Sampson  v.  Grimes,  7  Blackf.  176:  Breeding  v.  Taylor,  13  B. 
Mon.  477.  The  apportionment  is  never  made  between  several  successive 
holders  of  the  reversion  according  to  the  length  of  holding.  Whoever  owns 
the  reversion  when  the  rent  is  due  receives  the  entire  sum  Burden  v.  Thayer, 
3  Mete.  76 ;  Bank  of  Pennsylvania  v.  Wise,  3  Watts,  394 ;  Martin  v.  Martin,  7 
Md.  368. 

2  Jaques  v.  Gould,  4  Cush.  484 ;  Cole  v.  Patterson,  25  Wend.  456 ;  Bank 
of  Pennsylvania  r.  Wise,  3  Watts,  394;  Reed  v.  Ward,  22  Pa.  St.  144;  Crosby 
17.  Loop,  13  111.  625.  If  the  administrator  collects  the  rent  falling  due  after 
the  death  of  the  ancestor,  he  holds  it  as  trustee  for  the  heirs  and  the  widow. 
Mills  v.  Merryman,  49  Me.  65 ;  Drinkwater  v.  Drinkwater,  4  Mass.  358 ;  Robb's 
Appeal,  41  Pa.  St.  45;  King  v.  Anderson,  20  Ind.  386. 

3  See  Martin  r.  Crompe,  1  Ld.  Raym.  340;  Wall  v.  Hinds,  4  Gray,  256: 
Porter  v.  Bleiler,  17  Barb.  155;  Decker  v.  Livingston,  15  Johns.  479;  Ryerson 
v.  Quackenbush,  26  N.  J.  L.  254.  But  see  Jones  v.  Felch,  3  Bosw.  363.  But 
the  assignees  may,  and  should,  sue  in  their  own  names.  The  rent  passes  as  a 
vested  interest  in  land,  and  is  not  a  chose  in  action.  Demarest  i\  Willard,  8 
Cow.  200;  Van  Rensselaer  y.  Hays,  19  N»  Y.  99;  Ryerson  r.  Quackenbush, 
26  N.  J.  L.  251  ;  Dixon  v.  Niccolls,  39  111.  384;  Abercrombie  v.  Redpaih,  1 
Iowa.  Ill;  Crosby  b.  Loop,  13  111.625. 

*  Co.  Lit  -17  a:  Baker  r.  Gostling,  1  Bing.  N.  C  10;  Allen  o.  Bryan,  5  B. 
&  C.  672;   Patten  v.  Deshon,  1  Gray.  325;  Hunt     .  Thompson,  2  Allen,  342; 

126 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §    194 

raent  of  the  rent  without  the  reversion,  the  lessor  cannot 
divide  it  up  among  several  without  the  consent  of  the 
lessee  by  attornment,  although  a  devise  of  a  part  may  be 
good  without  attornment.1 

§  193.   Rent   reserved  —  Condition  of   forfeiture.  —  It 

is  also  often  provided  that  the  estate  shall  be  subject  to 
forfeiture  if  the  rent  is  not  paid.  But  in  order  that  non- 
payment of  rent  may  work  a  forfeiture  of  the  lease1,  the 
common  law  requires  that  a  demand  should  be  made  of  tin1 
lessee  for  the  precise  amount  of  rent,  on  the  day  when  it 
falls  due,  at  a  convenient  time  before  sunset,  and  on  the 
land,  at  the  most  prominent  place  upon  it,  —  usually  the 
front  door  of  the  dwelling-house,  if  there  be  any.  A 
demand  at  an  improper  place,  or  at  the  wrong  time,  would 
not  give  the  lessor  right  of  entry  for  forfeiture  of  the  estate.2 
But  the  parties  may  by  agreement  do  away  with  any  of  the 
requirements,  or  even  render  a  previous  demand  unneces- 
sary ;  in  which  case,  the  right  of  entry  accrues  immediately 
upon  the  breach  of  the  covenant.3 

§  194.  How  relation  of  landlord  and  tenant  may  be 
terminated.  —  The  relation  of    landlord   and   tenant,  and 

Kendall  v.  Carland,  5  Cush.  74 ;  McMurphv  v.  Minott,  4  N.  H.  251 ;  Moffatt 
v.  Smith,  4  N.  Y.  129;  Van  Rensselaer  v.  Hays,  19  N.  Y.  99;  Van  Rensselaer 
v.  Read,  26  N.  Y.  577  ;  Ryerson  v.  Quaekenbush,  26  N.  J.  L.  254;  Crosby  v. 
Loop,  13111.  625;  Dixon  v.  Niccolls,  39  111.  384. 

1  Ards  v.  Watkins,  Cro.  Eliz.  637 ;  Ryerson  v.  Quaekenbush,  20  N.  J.  L.  254. 

a  Doe  v.  Windlass,  7  T.  R.  117;  Doe  v.  Paul,  3C.&P.  613;  Conner  v. 
Bradley,  1  How.  (TJ.  S.)  211 ;  M'Murphy  v.  Minott,  4  N.  H.  251 ;  McQuestess 
v.  Margan,  34  N.  H.  400;  Bradstreet  v.  Clark,  21  Pick.  389;  Kimball  v.  Row- 
land, 6  Gray,  224 ;  Chapman  v.  Harney,  100  Mass.  354 ;  Ordway  v.  Remington, 
12  R.  I.  319;  34  Am.  Rep.  646;  Jackson  v.  Kipp,  3  Wend.  230;  Jackson  v. 
Harrison,  17  Johns.  66;  Academy  of  Music  v.  Hackett,  2  Hilt.  232;  M'Cor- 
mick  v.  Connell,  6  Serg.  &  R.  151 ;  Tate  v.  Crowson,  6  Ired.  L.  66 ;  Phillips 
v.  Doe,  3  Ind.  132;  Meni  v.  Rathbone,  21  lnd.  462;  Jenkins  v.  Jenkins,  63  Ind. 
415;  30  Am.  Rep.  229;  Chapman  v.  Wright,  20  111.  120;  Chapman  v.  Kirby, 
49  111.  121 ;  Byrane  v.  Rogers,  8  Minn.  282. 

8  Doe  v.  Masters,  2  B.  &  C.  490 ;  Fifty  Associates  v.  Howland,  5  Cush.  214  j 
Byrane  v.  Rogers,  8  Minn.  282. 

127 


§    195  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

therewith  the  liability  upon  the  covenants  of  the  lease, 
can  only  be  terminated  by  eviction,  release  or  surrender 
of  the  premises.1  The  destruction,  total  or  partial,  of  the 
premises,  or  their  becoming  untenantable,  from  any  cause 
except  the  acts  of  the  lessor,  will  not  relieve  the  parties 
from  their  covenants.  The  covenants  for  rent,  repair,  and 
restoration  in  good  condition,  are  still  binding.  Destruc- 
tion by  fire  or  inevitable  accident  is  no  ground  of  defence, 
unless  exceptions  to  that  effect  are  inserted  in  the  lease, 
or  the  State  statute  changes  the  liability  of  the  parties.3 

§  195.  What  constitutes  eviction.  —  Evictions  are  of  two 
kinds,  —  actual  or  constructive.     Actual  eviction   is  where 

1  Sheets  v.  Selden,  7  Wall.  224 :  Fuller  v.  Ruby,  10  Gray,  200;  Bain  r. 
Clark,  10  Johns.  424;  Gates  v.  Green,  4  Paige  Cli.  355;  Dyer  v.  Wightman, 
66  Pa.  St.  427. 

s  Hill  v.  Woodman,  14  Me.  38;  Kramer  r.  Cook,  7  Gray,  550;  Phillips  v. 
Steven-.  16  Mass.  288  ;  Wells  o.  ( lastles,  3  Gray,  325 ;  Hallet  v.  Wylie,  3  Johns. 
II :  Graves  v.  Beedan,  29  Barb.  100;  Joffe  v.  Hartean,  56  N.  Y.  398;  15  Am. 
Rep.  438;  Dyer  v.  Wightman,  66  Pa.  St.  427;  Smith  v.  Ankrim,  13  Serg. 
&  R.  30;  Peterson  v.  Edmonson,  5  Harr.  378;  White  v.  Molyneaux,  2  Ga. 
124;  Ward  v.  Bull,  1  Fla.  271  ;  Nave  v.  Berry,  22  Ala.  382;  Linn  v.  Ross,  10 
Ohio,  412;  Davis  v.  Smith,  15  M.>.  467;  Niedelet  ».  Wales,  16  Mo.  214;  Beach 
•.  Farrish,  4  Cal.  339;  Cowell  v.  Lumley,  39  Cal.  151;  2  Am.  Rep.  430. 
If  the  tenant  has  covenanted  "to  repair  and  deliver  up,"  he  would  have  to 
rebuild  in  the  case  of  destruction  by  fire.  Bullock  t.  Dommitt,  5  T.  R.  650; 
Hoy  v.  Holt,  91  Pa.  St.  88;  Maggort  v.  Hansbarger,  S  Leigh,  536;  Nave  r. 
Berry,  22  Ala.  382.  And  where  the  lessor  had  insured  the  premises,  in  the 
absence  of  a  covenant,  he  is  not  obliged  to  apply  it  to  the  reconstruction 
of  the  building,  in  case  of  loss  by  fire.  He  may  refuse,  and  still  recover  rent 
of  the  tenant.  Magaw  v.  Lambert,  3  Pa.  St.  444;  Bussman  c.  Ganster,  72  Pa. 
St.  289;  Sheets  v.  Selden,  7  Wall.  424;  Moffatt  v.  Smith,  4  N.  Y.  126;  Pope 
r.  Garrard,  39  Ga.  477;  Masury  v.  Southworth,  9  Ohio  St.  348.  But  now,  as 
already  stated  in  the  text,  the  common  law  has  in  most  of  the  States  been 
changed,  so  that  if  the  premises  are  destroyed  by  fire  or  other  casualty,  so 
far  as  to  render  them  untenantable,  the  tenant  will  be  absolved  from  his 
liability  for  rent.  See  Graves  v.  Berdan,  26  X.  Y.  502 ;  Coogan  r.  Parker,  2 
S.  C.  255;  16  Am.  Rep.  650;  Ripley  v.  Wightman,  4  McCord,  417;  Coleman 
v.  Haight,  14  La.  An.  564;  Whittaker  v.  llawlev,  25  Kan.  674;  7  A  i.  Rep. 
277 ;  Leavett  v.  Fletcher,  10  Allen,  121 ;  Stow  v.  Russell,  36  111.  35;  Alger  v. 
Kennedy,  49  Vt.  109. 

128 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §     196 

the  tenant  is  actually  ousted  of  his  possession  of  the  prem- 
ises, either  by  a  stranger  under  a  paramount  title,  or  by 
acts  of  dispossession  by  the  lessor.1  But  a  disturbance 
of  the  possession  by  a  stranger  without  claim  of  para- 
mount title  will  not  be  an  eviction.2  Nor  will  the  dispos- 
session in  the  exercise  of  the  right  of  eminent  domain  be 
such  an  eviction  as  will  relieve  the  lessee  from  liability  on 
his  covenant  for  rent.  It  gives,  however,  an  action  for 
damages  against  the  public  for  land  so  confiscated.3  Nor 
would  dispossession  by  the  public  enemy  abate  the  rent.4 

§  196.  Constructive  eviction.  —  Constructive  eviction 
results  when  the  lessor,  by  his  own  act  or  by  his  own  pro- 
curement, renders  the  enjoyment  of  the  premises  impos- 
sible, or  diminishes  such  enjoyment  to  a  material  degree.* 

1  Robinson  v.  Deering,  56  Me.  358;  Russell  v.  Fabyan,  27  N.  H.  543; 
Boardman  v.  Osborn,  23  Pick.  295;  Fitchburg  Co.  v.  Melvin,  15  Mass.  268; 
Home  Life  Ins.  Co.  v.  Sberman,  46  N.  Y.  372. 

2  Welles  v.  Castles,  3  Gray,  326 ;  Schuylkill,  etc.,  R.  Co.  v.  Schmoele,  57 
Pa.  St.  273;  Moore  v.  Webber,  71  Pa.  St.  429:  10  Am.  Rep.  705;  Palmer  v. 
Wetmore,  2  Sandf.  316 ;  Royce  v.  Suggenhiem,  106  Mass.  205 ;  8  Am.  Rep. 
322 ;  Hazlett  v.  Powell,  30  Pa.  St.  293. 

3  Parks  v.  Boston,  15  Pick.  198;  Patterson  v.  Boston,  20  Pick,  159;  Folts 
v.  Huntley,  7  Wend.  210;  Workman  v.  Mifflin,  30  Pa.  St.  362;  Peck  v.  Jones, 
70  Pa.  St.  85;  Foote  v.  Cincinnati,  11  Ohio,  408;  McLarren  v.  Spalding,  2 
Cal.  510.  In  Missouri  a  different  rule  is  laid  down,  and  if  a  part  of  the 
premises  is  appropriated  to  public  use,  the  rent  is  reduced  pro  tanto.  Biddle 
».  Hussman,  23  Mo.  597;  Kingsland  v.  Clark,  24  Mo.  24.  See  Gillespie  v. 
Thomas,  15  Wend.  468. 

*  Clifford  v.  Watts,  L.  R.  5  C.  P.  586  ;  Wagner  v.  White,  4  Harr.  &  J.  564  ; 
Schilling  v.  Holmes,  23  Cal.  230;  contra,  Bayley  v.  Lawrence,  1  Bay,  499. 

5  Thus,  the  renting  of  a  part  of  a  house  to  prostitutes  is  a  constructive 
eviction  of  the  tenant  of  the  other  part  of  the  house.  Dyett  v.  Pendleton,  8 
Cow.  727;  but  see  contra,  Dewett  v.  Pierson.  112  Mass.  8;  17  Am.  Rep.  58. 
Erections  by  the  lessor,  or  with  his  consent,  so  near  the  premises  as  to  seri- 
ously diminish  the  enjoyment,  would  constitute  a  constructive  eviction.  Rovce 
v.  Guggenheim,  100  Mass.  201;  8  Am.  Rep.  322;  Sherman  v  Williams,  113 
Muss.  481;  18  Am.  Rep.  522;  Wright  v.  Lattin,  38  111.  293.  In  short,  any 
acts  which  destroy  the  premises,  or  render  them  useless,  may  operate  as  a 
constructive  eviction.  Halligan  v.  Wade,  21  111.  479;  Bentley  v.  Sill,  35  111. 
414;  Hayner  v.  Smith,  63  ill.  430;  14  Am.  Rep.  124;  Edgerton  v.  Page,  20 

9  129 


§    196  ESTATES    LESS    THAN    FREEHOLD.  PART    I. 

Slight  acts  of  trespass,  which  do  not  by  their  material 
interference  with  the  enjoyment  of  the  premises  compel 
the  tenant  to  abandon  the  possession,  is  not  a  constructive 
eviction.  The  lessor  is  liable  for  them,  however,  like  any 
other  trespasser.1  And  to  relieve  the  tenant  from  liability 
for  rent  on  account  of  a  constructive  eviction,  he  must 
abandon  the  possession  of  the  premises.  Retention  of  pos- 
session will  keep  alive  his  liability  on  the  covenants,  even 
though  his  enjoyment  of  the  premises  is  taken  away  alto- 
gether.2 In  the  case  of  partial  eviction,  if  it  results  from 
the  acts  of  strangers,  in  violation  of  the  lessor's  covenant 
for  quiet  enjoyment,  the  tenant  will  be  relieved  from  the 
covenant  for  rent  to  the  extent  of  the  eviction,  while  In- 
remains  liable  to  the  lessor  for  the  remainder.3  But  if  it 
be  by  procurement  of  the  lessor,  the  entire  rent  is  sus- 
pended during  the  continuance  of  such  eviction,  and  tin- 
lessee  may  eleet  to  abandon  the  premises,  thus  terminating 
the  tenancy  and   his  liability  for  rent  altogether.4     In  all 

N.  Y.  281;  St.  John  v.  Palmer,  5  Hill.  599;  Bennett  v.  Bittle,  4  Rawle,  339; 
Pier  v.  Carr,  69  Pa.  St.  326 ;  Martin  v.  Martin,  7  Md.  375 ;  Lawrence  v.  French, 
25  Wend.  443;  Fuller  v.  Ruby,  10  Gray,  290;  Wilson  v.  Smith,  5  Yerg.  399; 
Jackson  v.  Eddy,  12  Mo.  209;  Alger  v.  Kennedy,  49  Vt.  109;  24  Am.  Rep. 
127. 

1  Edgerton  v.  Page,  20  N.  Y.  281 ;  Gardner  v.  Ketelas,  3  Hill,  330 ;  Elliott 
v.  Aiken,  45  N.  H.  35;  Bennett  v.  Bittle,  4  Rawle,  339;  Briggs  v.  Hall,  4 
Leigh,  485 ;  Wilson  v.  Smith,  6  Yerg.  399 ;  Day  v.  Watson,  8  Mich.  535.  See 
Hayner  v.  Smith,  63  111.  430;  14  Am.  Rep.  124. 

2  Edgerton  v.  Page,  20  N.  Y.  2S1;  Hurlbut  v.  Post,  1  Bosw.  28;  Dyett  v. 
Pendleton,  8  Cow.  727;  Jackson  ».  Edd}%  12  Mo.  209;  Royce  v.  Guggenheim. 
106  Mass.  201 ;  8  Am.  Rep.  322 ;  Lounsberry  v.  Snyder,  31  N.  Y.  514 ;  Alger 
v.  Kennedy,  49  Vt.  109;  24  Am.  Rep.  127,  and  cases  in  preceding  note. 

3  Morrison  v.  Chadwick,  7  C.  B.  283;  Hegeman  v.  Arthur,  1  E.  D.  Smith, 
147;  Lawrence  v.  French,  25  Wend.  443 ;  Blair  v.  Claxton,  18  N.  Y.  529;  Dyett 
v.  Pendleton,  8  Cow.  727 ;  Martin  v.  Martin,  7  Md.  375. 

4  Lewis  v.  Paign,  4  Wend.  423;  Christopher  v.  Austin,  11  N.  Y.  216;  Ed- 
gerton v.  Page,  20  N.  Y.  281;  Shumway  v.  Collins,  6  Gray,  227;  Leishmanv. 
White,  1  Allen,  489;  Reed  v.  Reynolds,  37  Conn.  469;  Colburn  v.  Morrill, 
117  Mass.  262;  19  Am.  Rep.  415;  Royce  v.  Guggenheim,  106  M:i>s.  201  ;  8 
Am.  Rep.  322;  Smith   v.  Stigleman,  58  111.  141;  Wilson  v.  Smith.  5  Yerg. 

130 


CH.  VII.]  ESTATES    LESS    THAN'    FREEHOLD.  §    197 

cases  of  eviction  the  tenant  is  exempt  from  the  payment 
of  rent  from  the  last  pay-day  prior  to  such  eviction;  but 
the  liability  for  rent  revives  if  the  tenant,  after  the  eviction, 
should  resume  possession  of  the  premises.1  If  the  eviction 
is  only  partial,  the  resumption  of  possession  will  not  render 
the  tenant  liable  for  the  intermediate  rent  for  the  part  which 
he  continued  to  occupy  during  the  continuance  of  such  evic- 
tion.2 

§  197.  Surrender  and  merger.  —  If  the  tenant  gives  up 
his  term  to  the  immediate  reversioner,  he  is  said  to  sur- 
render his  estate,  and  the  estate  is  merged  or  becomes  lost 
in  the  reversion ;  the  effect  of  which  is  to  extinguish  all 
liability  on  the  covenants  of  the  lease.3  But  if  an  estate 
intervenes  between  the  two  estates,  neither  surrender  nor 
merger  will  take  place.4  In  order  to  prevent  a  merger 
of  the  term  in  the  reversion,  it  is  a  common  custom  in 
England  to  have  the  term  conveyed  to  trustees,  and  con- 
ditioned to  follow  the  reversion  into  whosesoever  hands  the 
latter  may  come.  This  was  called  a  term,  attendant  upon 
the  inheritance,  and  may  be  done  whenever  there  is  fear 
of  incumbrances  which  will  affect  the  reversion  while  they 

379;  Pier  v.  Carr,  69  Pa.  St.  326;  Schilling  ».  Holmes,  23  Cal.  230.  But 
neither  total  nor  partial  eviction  will  prevent  the  lessor  from  recovering  rent 
already  due,  when  the  eviction  takes  place.  Giles  v.  Comstock,  4  N.  Y.  270; 
Kessler  v.  McConachy,  1  Rawle,  435. 

1  Morrison  v.  Chadwick,  7  C.  B.  283;  Chatterton  v.  Fox,  5  Duer,  64;  Fitch- 
burg  v.  Melvin,  15  Mass.  268;  Boardrnan  v.  Isborn,  23  Pick.  295;  Russell  v. 
Fabyan,  27  N.  H.  543;  Colourn  v.  Morrill,  117  Mass.  262;  19  Am.  Rep.  415; 
Royce  v.  Guggenheim,  106  Mass.  201 ;  8  Am.  Rep.  322;  Martin  v.  Martin,  7 
Md.  378;  Corning  v.  Gould,  16  Wend.  538;  Smith  v.  Stigleman,  58  111.  141. 

2  Upton  v.  Greenlees,  17  C.  B.  30;  Fuller  v.  Ruby,  10  Gray,  285;  Leish- 
man  v.  White,  1  Allen,  489;  Lawrence  v.  French,  25  Wend.  443;  Christopher 
o.  Austin,  11  N.  Y.  215;  Anderson  v.  Chicago  Ins.  Co.,  21  111.  601. 

3  Co.  Lit.  338  a;  1  Washb.  on  Real  Prop.  552 ;  Curtis  v.  Miller,  17  Barb. 
477;  Greider's  Appeal,  5  Pa.  St.  422;  Bailey  v.  Wells,  8  "Wis.  158;  Smiley  o. 
Van  Winkle,  6  Cal.  605. 

*  1  Washb.  on  Ileal  Prop.  553;  Burton  v.  Barclay,  7  Bing  "45;  Williams 
on  Real  Prop.  413,  415. 

131 


§198  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

are  subject  to  the  term.1  Nor  will  merger  —  i.e.,  the  dis- 
solution of  the  term  in  the  reversion  —  take  place  where 
the  two  come  together  into  the  possession  of  one  person 
by  act  of  the  law,  —  as,  Avhere  the  husband  has  a  term 
of  years  in  his  own  right,  and  a  term  of  years  in  his 
wife,  or  tenancy  by  curtesy  through  the  freehold  of  his 
wife.  They  will  continue  to  exist  uninfluenced  by  their 
union  in  the  one  person.3  Where  two  terms  come  together 
in  one  person,  the  first  will  merge  in  the  second,  even 
though  the  first  be  for  a  longer  period,  unless  the  second  is 
created  by  way  of  remainder,  when  no  merger  will  result. 
The  person  becoming  possessed  of  both  will  have  the  benefit 
of  both  in  succession.3 

§  198.  How  surrender  may  be  effected.  —  As  a  general 
proposition,  a  surrender  which  will  operate  as  an  extinguish- 
ment of  the  lessee's  liability  for  rent  and  on  the  other  cove- 
nants of  the  lease,  requires  the  same  formalities  of  execution, 
under  the  Statute  of  Frauds,  as  are  necessary  in  the  crea- 
tion of  the  lease.  A  lease  in  writing,  therefore,  can,  as  a 
general  rule,  only  be  terminated  by  a  surrender  in  writing; 
and  if  the  lease  was  required  to  be  under  seal,  the  sur- 
render must  be  also.4     But  if  the  lessee  takes  a  new  lease, 

Williams  on  Real  Prop.  416,  417. 

2  1  Washb.  on  Real  Prop.  554 ;  Williams  on  Real  Prop.  415 ;  3  Prest.  Conv. 
276 ;  Jones  v.  Davies,  5  Hurlst.  &  N.  766 ;  Doe  v.  Pett,  11  Ad.  &  El.  842 ;  Clift 
v.  White,  19  Barb.  70. 

3  Co.  Lit.  273  b ;  3  Prest.  Conv.  201 ;  1  Washb.  on  Real  Prop.  553,  554 ; 
Hughes  v.  Robotham,  Cro.  Eliz.  303;  Stephens  v.  Bridges,  6  Madd.  66.  This 
doctrine  of  merger  is  applicable  to  all  classes  of  estates,  and  provides  for  the 
dissolution  of  the  inferior  in  the  greater  estate.  The  superiority  of  estates  in 
this  connection  is  determined  by  their  legal  value,  and  not  their  pecuniary  or 
market  value.  Thus,  an  estate  for  one  thousand  years  is  less  than,  and  becomes 
merged  in,  a  life  estate,  when  the  two  come  together  in  one  person. 

*  Ward  v.  Lumley,  5  Hurlst.  &  X.  88:  nesseltine  ,-.  Seavey,  16  Mo.  212; 

•Brady  v.  Peiper,  1  Hilt.  61  ;  .la  kson       Gardner,  8  Johns.  404;  Allen  v,  Ja- 

quish,  21  Wend.  628;   M'Kinney  o.  Reader,  7  Watts.  123;   rooster  r.  Miller, 

',25  Pa.  St.  481  ;  Bailey  r.  Wells,  8  Wis.  1  11.     But  the  lessee's  surrender  will 

132 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §     19* 

the  enjoyment  of  which  is  incompatible  with  the  continu- 
ance of  the  old  lease,1  or  if  the  lessee  abandons  the  pos- 
session, and  the  lessor  actually  enters  into  possession,  or 
leases  the  premises  to  other  parties,  such  acts  will  be  suffi- 
cient to  work  a  surrender  of  the  premises,  so  far,  at  least, 
as  to  relieve  the  tenant  from  liability  on  his  covenants.2 
But  an  abandonment  of  possession  by  the  tenant  will  not 
work  a  surrender  of  the  premises,  unless  it  is  assented  to 

in  no  wise  affect  the  rights  of  third  parties,  such  as  sublessees.  They  will 
still  hold  their  rights  or  interests  in  the  estate ;  but  after  such  a  surrender, 
they  must  perform  their  covenants  to  the  surrenderee.  He  can,  for  example, 
compel  the  sublessee  to  pay  the  rent  to  him.  Adams  v.  Goddard,  48  Me.  212 ; 
Beal  v.  Boston,  etc.,  Car  Co.,  125  Mass.  157;  28  Am.  Rep.  216;  Piggott  v. 
Stratton,  1  Johns.  Ch.  355;  McKenzie  v.  Lexington,  4  Dana,  129. 

1  Lyon  v.  Reed,  13  M.  &  W.  304 ;  McDonnell  v.  Pope,  9  Hare,  705 ;  Shepard 
v.  Spaulding,  4  Mete.  416;  Brewer  v.  Dyer,  7  Cush.  339;  Livingston  v.  Potts, 
16  Johns.  28;  Van  Rensselaer  v.  Penniman,  6  Wend.  509;  Coe  v.  Hobby,  72 
N.  Y.  141 ;  28  Am.  Rep.  120;  Bailey  v.  Wells,  8  Wis.  141.  And  where  the 
second  lease  is  parol,  while  the  first  is  written,  the  acceptance  of  the  second 
will  constitute  a  surrender  of  the  first,  if  the  second  lease  is  valid  under  the 
Statute  of  Frauds.  Thomas  v.  Cook,  2  B.  &  Aid.  119;  Smith  v.  Niver,  2 
Barb.  180;  Bedford  v.  Terhune,  30  N.  Y.  463.  But  there  will  be  no  surrender 
where  the  second  lease  is  from  one  of  the  two  original  lessors  (Sperry  v. 
Sperry,  8  N.  H.  477),  or  the  release  of  the  first  is  executed  by  one  of  the  two 
original  lessees.     Baker  v.  Pratt,  15  111.  568. 

2  Dodd  v.  Acklom,  6  Mann.  &  G.  673;  Walker  v.  Richardson,  2  M.  &  W. 
891;  Hesseltine  v.  Seavey,  16  Me.  212;  Randall  v.  Rich,  11  Mass.  494: 
Brewer  v.  Dyer,  7  Cush.  337;  Talbot  v.  Whipple,  14  Allen,  180;  Bedford 
w.  Terhune,  30  N.  Y.  462;  Hegeman  v.  McArthur,  1  E.  D.  Smith,  149;  Brady 
v.  Peiper,  1  Hilt.  61 ;  Baker  v.  Pratt,  15  111.  568 ;  Statesbury  v.  Vail,  13  N.  J.  L. 
390;  M'Kinney  v.  Reader,  7  Watts,  123;  Wool  v.  Walbridge,  19  Barb.  136; 
Van  Rensselaer  v.  Freeman,  6  Wend.  569;  Cline  v.  Black,  4  McCord,  431; 
Schniler  v.  Ames,  16  Ala.  73.  In  Fifty  Associates  v.  Grace,  125  Mass.  161  (28 
Am.  Rep.  218),  it  was  held  that  where  the  lease  is  expressly  non-assignable, 
and  the  lessor  assents  to  an  assignment  and  a  different  use  of  the  premises, 
this  assent,  together  with  acceptance  of  rent  from  the  assignee,  is  in  effect  the 
creation  of  a  new  tenancy,  and  the  original  lessee  is  no  longer  liable  on  his 
covenant  for  rent.  See  also  Bailey  v.  Delaplaine,  1  Sandf.  5  ;  Logan  v.  Ander- 
son, 2  Dougl.  (Mich.)  101;  Levering  v.  Langley,  8  Minn.  107.  But  the  mere 
oral  agreement  to  substitute  another  in  the  place  of  the  tenant  will  not  have 
the  effect  of  a  surrender,  unless  the  agreement  has  been  carried  into  effect, 
and  evidenced  by  some  act,  — such  as  acceptance  of  rent  from  the  new  tenant. 
See  Brewer  v.  Dyer,  7  Cush.  337 ;  Whitney  v.  Myers,  1  Duer,  266. 

133 


§     1(J9  ESTATES    LESS    THAN    FKEEHOLD.  [PART    I. 

by  the  lessor,  and  such  .acceptance  must  be  shown  by  word 
or  acts,  —  such,  for  example,  as  entry  into  possession.1 
A  surrender  may  also  be  made  to  operate  infuturo.2 

§  199.   Right  of   lessee    to  deny    lessor's  title.  —  As  a 

consequence  of  the  tenure  existing  between  landlord  and 
tenant,  if  one  person  accepts  a  lease  from  another,  and 
enters  into  possession  under  the  lease,  he  is  estopped  from 
denying  the  lessor's  title,  by  setting  up  a  title  in  himself 
or  in  a  third  person  adverse  to  the  right  of  the  lessor  to 
grant  the  original  lease,  in  any  action  for  the  recovery 
of  the  rent,  or  of  the  possession.3     And  this  principle  is 

1  Thomas  o.  Cook,  2  B.  &  Aid.  119;  Whitehead  v.  Clifford,  3  Taunt.  318; 
Eegeman  v.  MeArthur,  15  N.  Y.  149;  Elliott  v.  Aiken,  45  N.  H.  36;  Stobie 
v.  Dills,  62  111.  432;  Matthews  v.  Taberner,  39  Mo.  115;  Statesbury  v.  Vail, 

13  N.  J.  L.  390. 

2  Allen  v.  Joquish,  21  Wend.  628;  but  an  acceptance  of  notice  that  the 
tenant  is  to  quit  at  a  future  time,  without  acceptance  of,  or  entering  into, 
possession,  when  the  tenant  abandons  the  premises,  is  not  s'leh  a  surrender  as 
will  relieve  the  tenant  from  liability  on  his  express  covenant  for  rent.  John- 
stone v.  Huddlestone,  4  \>.  &  C.922;  Jackson  v.  Gardner.  8  Johns  404:  Schief- 
felin  v.  Carpenter,  15  Wend.  400. 

3  Cooke  v.  Loxley,  5  T.  R.  1:  Delaney  o.  Fox,  2  C.  !'».  (n.  s.)  768;  Blight's 
Lessee  v.  Rochester,  7  Wheat.  548;  Willison  v.  Waikins,  3  Pet.  43;  ' 
Johnson,  14  N.  II.  Ill;  Russell  s.Fabyan,  27  N.  11  529;  Longfellow 
fellow,  54  Me.  240:  Boston  v.  Binney,  11  Piojc.  8;  Col. urn  v.  Palmer,  8  Cash. 
124;  Towne  v.  Butterfield,  07  Mass.  106;  Tuttle  ».  Reynolds,  1  Vt.  80:  Ver- 
nam  v.  Smith,  15  N.  Y.  3:27  :  People  v.  Stiner,  45  Barb.  56;  Ingraham  v. 
Baldwin,  9  N.  Y.  47;  Brown  t-.  D3rsinger,  1    Rawle,  408;   Miller  v.  McBrier, 

14  Serg  &  R.  382;  Bedford  v.  Kelly,  69  Pa.  St.  493;  Darby  o.  Anderson,  1 
Nott  &  M.369;  Funk's  Lessee  v.  Kincaid,  5  Md.  404;  Terry  o.  Perg 
Port,  (Ala.)  500;  Pope  v.  Earkins,  1  i  Ai  i.  322;  Caldwell  o.  Earris,  1  Humph. 
24;  Ryerson  v.  Eldred,  10  Mich.  22;  Moore  v.  Beasley,  3  Ohio,  294;  Hodges 
.-.  Shield,  18  B.  Mon.  830;  Hamit  v.  Lawrence,  2  A.  K.  Ma  Alwood 
v.  Mansfield,  33  111.  458;  McCartney  v.  Hunt.  16  III.  76;  Parker  v.  Raymond, 
14  Mo.  535;  St.  Louis  v.  .Morton,  6  Mo.  476;  Thrall  v.  Omaha  Bote]  Co.,  6 
Neb.  295;  25  Am.  Rep.  488;  Tewkshury  r.  Magraff,  33  Cal.  klin  r. 
Merida.  35  Cal.  558.  I'm  the  tenant  is  not  estopped  from  setting  up  a  tax- 
title  purchased  by  him  during  the  tenancy,  unless  he  is  under  obligation  to 
pay  the  taxes.  Weichelsbaum  ».  Carlett,  20  Kan.  701);  Bettison  v.  Rudd.  17 
Ark.  546;  Haskell  v.  Putnam,  42  Ale. -44.     The  mere  taking  of  a  lease  does 

134  ' 


CH.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §     199 

applied  to  any  land,  the  title  to  which  the  tenant  may  have 
acquired  by  purchase  or  by  disseisin  during  the  continu- 
ance t)f  the  term,  and  which  he  occupied  and  used  in  con- 
nection with  the  leased  land,  whether  adjacent  or  at  a 
distance,  unless  the  presumption  of  holding  for  the  benefit 
of  the  landlord  is  rebutted  by  strong  and  clear  evidence 
of  a  contrary  intention.1 

This  estoppel,  however,  exists  only  during  the  continu- 
ance of  the  term,  and  the  tenant,  if  he  has  acquired  a 
superior  title,  may  enforce  it  against  the  lessor,  after  he 
has  delivered  up  possession  to  him  at  the  expiration  of  the 
lease.2  And  during  the  continuance  of  the  lease,  if  the 
tenant  has  been  evicted  by  a  stranger  under  the  claim 
of  a  paramount  title,  the  tenant  may  attorn  to  such  claimant, 
and  deny  the  lessor's  right  to  recover  the  rent  or  the  pos- 
session. But  in  order  to  be  able  to  set  up  such  a  defence, 
he  must  give  his  lessor  notice  of  the  claim,  and  the  eviction 
must  be  actual ;   although  he  need  not  wait  to  be  actually 


not  estop  the  lessee.    Entry  into  possession  is  necessary  to  create  the  estoppel. 
Chattle  v.  Found,  1  Ld.  Raym.  710;  Nerhath  v.  Althouse,  8  Watts,  427. 

1  Doe  v.  Jones,  15  M.  &  W.  580;  Doe  v.  Rees,  6  C.  &  P.  610;  Doe  v.  Tid- 
bury,  14  C.  B.  304;  Kingsmill  v.  Millard,  11  Exch.  313;  Dixon  v.  Baty,  L.  R. 
1  Exch.  259 ;  Lisburne  v.  Davies,  L.  R.  1  C.  P.  260 ;  Doe  v.  Murrell,  8  C.  &  P. 
134.  This  point  does  not  seem  to  have  ever  been  passed  upon  by  an  American 
■court,  but  it  is  very  probable  that  the  same  position  would  be  maintained  if 
the  question  comes  up  for  adjudication. 

2  Accidental  Death  Ins.  Co.  v.  Mackenzie,  10  C.  B.  (n.  s.)  870;  Willson  v. 
Watkiris,  3  Pet.  43 ;  Longfellow  v.  Longfellow,  54  Me.  249 ;  Page  v.  Kinsman, 
13  N.  H.  331 ;  Russell  v.  Fabyan,  27  N.  H.  529;  Greene  v.  Munson,  9  Vt  40; 
Hall  v.  Dewey,  10  Yt.  593;  Jackson  v.  Vincent,  4  Wend.  633;  Delancey  v. 
Ganong,  9  N.  Y.  9;  Sharpe  v.  Kelly,  5  Denio,  431  ;  Porter  v.  Mayfield,  21 
Pa.  St.  264 ;  Elliotts  Smith,  23  Pa.  St.  131 ;  Shields  v.  Lozear,  34  N.  J.  L.  496  ; 
Wilson  v.  Weathersby,  1  Nott  &  M.  373;  Williams  v.  Garrison,  29  Ga.  503 ; 
Doe  v.  Reynolds,  27  Ala.  270;  Russell  v.  Erwin,  38  Ala.  50;  Wilson  v.  Smith, 
5  Yerg.  379 ;  Duke  v.  Harper,  6  Yerg.  280 ;  Brown  v.  Keller,  32  111.  150 ;  Wall 
v.  Goodenough,  16  111.  410;  Hodges  v.  Shields,  18  B.  Mon.  832;  Deane  v. 
Gregory,  3  B.  Mon.  619;  Stout  v.  Merrill,  35  Iowa,  47.  And  disclaimer  of 
tenancy,  with  abandonment  of  possession,  will  have  the  same  effect.  Fuller 
v.  Sweet,  30  Mich.  237;  18  Am.  Rep.  122. 

135 


§    199  ESTATES    LESS    THAN    FREEHOLD  [PART    I. 

put  out  of  possession  before  attorning  to  the  stranger 
claimant.1  He  may  also  show  that  the  lessor's  title  has 
since  been  determined,  and  that  he  has  acquired  the  title 
to  the  reversion,  although  such  determination  of  the  lessor's 
title  is  not  a  good  defence,  if  the  reversion  is  held  by  a 
stranger,  unless  he  has  been  actually  or  constructively 
evicted.2  He  may  also  show  that  he  has  been  induced  to 
accept  the  lease  through  misrepresentation  or  fraud,  or 
that  the  lessor  was  not  in  possession  at  the  creation  of  the 
lease.3 

The  same  doctrine  of  estoppel  applies  to  the  assignees, 
devisees  and  heirs  of  the  lessor.  The  lessee  cannot  dispute 
the  title  of  the  original  lessor,  but  he  may  deny  the  validity 
of  the  assignment,  the  devise,  or  the  descent.4     And  in  case 

1  Mayor  v.  Whitt,  5M.&W.  571 ;  Simers  v.  Salters,  3  Denio,  214;  Whalin 
v.  White,  25  N.  Y.  465;  Morse  v.  Goddard,  13  Mete.  177;  George  v.  Putney, 
4  Cush.  354;  Hilbourne  v.  Fogg,  99  Mass.  1;  Towne  v.  Butterfield,  100  Mass. 
189;  Ryers  v.  Farwell,  9  Barb.  615 ;  Lawrence  v.  Miller,  1  Sandf.  576;  Stewart 
v.  Roderick,  4  "Watts  &  S.  188 ;  Shields  v.  Lozear,  34  N.  J.  L.  496 ;  Perrin  v. 
Calhoun,  2  Brev.  248;  Devacht  v.  Newsam,  3  Ohio,  57;  Lowe  v.  Emerson,  48 
111.  160 ;  Bailey  v.  Moore,  21  111.  165 ;  Casey  v.  Gregory,  13  B.  Mon.  506 ;  Luns- 
ford  v.  Turner,  5  J.  J.  Marsh.  104;   Wheelock  v.  Warschauer,  21  Cal.  216. 

2  Walton  v.  Waterhouse,  2  Saund.  418  n ;  Stack  v.  Seaton,  26  Mann.  &  R. 
729 ;  Jackson  v.  Rowland,  6  Wend.  666 ;  Despard  v.  Wallbridge,  1  E.  D.  Smith, 
374;  Hoag  v.  Hoag,  35  N.  Y.  471;  George  v.  Putney,  4  Cush.  355  Hilbourn 
v.  Fogg,  99  Mass.  11;  Lamson  v.  Clarkson,  113  Mass.  348;  18  Am.  Rep.  498; 
Kimball  v.  Lockwood,  6  R.  I.  138;  Pierce  v.  Brown,  124  Vt.  105;  Duffer  v. 
Wilson,  69  Pa.  St.  316;  Elliott  v.  Smith,  23  Pa.  St.  131 ;  Shields  v.  Lozear,  34 
N.  J.  L.  496 ;  Giles  v.  Ebsworth,  10  Md.  333 ;  Stout  v.  Merrill,  35  Iowa,  47 ; 
Tewksbury  v.  Magraff,  33  Cal.  237;  Franklin  v.  Palmer,  50  111.  202;  Tilgh- 
man  v.  Little,  13  111.  241 ;  Pope  o.  Haskins,  16  Ala.  323;  Camley  v.  Stanfield, 
10  Tex.  546;  Wild's  Lessee  v.  Serpell,  10  GratU415;  Magill  v.  Hinsdale,  6 
Conn.  46;  Horner  v.  Leeds,  25  N.  J.  L.  106;  Stedman  v.  Gassett,  18  Vt.  346; 
Wolf  v.  Johnson,  30  Miss.  513;  Beall  v.  Davenport,  48  Ga.  165;  15  Am.  Rep. 
656. 

3  Accidental  Death  Ins.  Co.  v.  McKenzic,  10  C.  B.  (n.  s.)  871;  Clee  v. 
Seaman,  21  Mich.  297 ;  Franklin  v.  Merida,  35  Cal.  558 ;  Tewksbury  v.  Ma- 
graff, 33  Cal.  237;  Jackson  v.  Spear,  7  Wend.  401;  Alderson  v.  Miller,  15 
Gratt.  279;  Hockenbury  v.  Snyder,  2  Watts  &  S.  240;  Thayer  v.  Society,  etc,, 
20  Pa.  St.  60;  Miller  v.Bonsadon,  9  Ala.  317;  Tison  r.  Yawn,  15  Ga.  491. 

«  Tuttle  v.  Reynolds,  1  Vt.  80;  Russell  v.  Allard,  18  N.  H.  225;  Despard 
136 


CH.   VII.]  ESTATES    LESS    THAN    FREEHOLD.  §    200 

of  assignment,  he  may  dispute  the  original  lessor's  present 
title,  by  setting  up  the  title  of  the  assignee  to  whom  he 
has  attorned.1 

§  200.  Effect  of   disclaimer  of  lessor's  title.  —  If  the 

lessee  illegally  denies  the  lessor's  title  to  the  land,  it  is  vir- 
tually an  act  of  disseisin.  But  it  will  not  work  a  rupture 
of  the  relation  of  landlord  and  tenant  except  at  the  option 
of  the  lessor.  If  he  so  elects,  he  may  consider  the  lease 
as  forfeited,  and  treat  the  bssee  as  a  disseisor.  Otherwise 
the  relation  of  landlord  and  tenant  continues,  with  all  the 
attending  liabilities  and  duties.2  The  Statute  of  Limitations 
will  not  run  against  the  lessor's  title,  until  due  notice  has 
been  given  to  the  lessor  of  the  claim  of  adverse  possession, 
and  will  ripen  into  a  good  title  mly  when  the  lessor  fails 
within  the  statutory  period  to  exercise  the  rights  of  an 
owner  over  the  land.  The  payment  of  rent,  whether  volun- 
tary or  involuntary,  will  be  a  sufficient  acknowledgment  of 
the  tenure  and  the  lessor's  title  to  prevent  its  being  barred 
by  the  Statute  of  Limitations.3 

v.  Smith,  15  N.  Y.  377;  Blantin  v.  Whitaker,  11  Humph.  313;  Funk'g  Lessee 
v.  Kincaid,  5  Md.  404 ;  Beall  v.  Davenport,  48  Ga.  155 ;  15  Am.  Rep.  656. 

1  Delaney  v.  Fox,  2  C.  B.  (n.  s.)  778 ;  Stedman  v.  Gassett,  18  Vt.  346 ;  Kim- 
ball v.  Lockwood,  6  R.  I.  138 ;  Mass.  Ins.  Co.  v.  Wilson,  10  Mete.  126;  Welch 
v.  Adams,  1  Mete.  494;  Magill  v.  Hinsdale,  6  Conn.  464;  Pierce  v.  Brown,  24 
Vt.  185;  Pope  v.  Haskins,  16  Ala.  323;  Beall  v.  Davenport,  48  Ga.  165;  15 
Am.  Rep.  656. 

2  Sherman  v.  Champlain  Transp.  Co.,  31  Vt.  110;  Greene  v.  Munson,  9 
Vt.  37;  Jackson  v.  Vincent,  4  Wend.  633;  Delancey  v.  Ganong,  9  N.  Y.  9; 
Jackson  v.  Collins,  11  Johns.  5;  Stearns  v.  Godfrey,  15  Me.  148;  Russell  v. 
Fabyan,  34  N.  H.  223 ;  Newman  v.  Rutter,  8  Watts,  5 ;  Wild's  Lessee  v.  Ser- 
pen, 10  Gratt.  405 ;  Wadsworthville  School  v.  Meetze,  4  Rich.  50 ;  Doe  v. 
Reynolds,  27  Ala.  376;  Montgomery  v.  Craig,  3  Dana,  101;  Fusselman  v. 
Worth ington,  14  111.  135. 

8  Willison  v.  Watkins,  3  Pet.  49;  Zeller  v.  Eckhert,  4  How.  289;  Greene 
v.  Munson,  9  Vt.  37 ;  Sherman  v.  Champlain  Transp.  Co.,  31  Vt.  110;  Bedford 
v.  McElheron,  2  Serg.  &  R.  49;  McGinnis  v.  Porter,  20  Pa.  St.  80;  Colvin  v. 
Warford,  20  Md.  396 ;  Jackson  v.  Wheeler,  6  Johns.  272 ;  Whaley  v.  Whaley, 
1  Speers,  225;  Deano  v.  Gregory,  3  B.  Mon.  619;  Lee  v.  Netherton,  9  Yerg. 
815;  Duke  v.  Harper,  6  Yerg.  280. 

137 


§    201  ESTATES    LESS    THAN    FREEHOLD.  [PART    I. 

§  201.  Letting  land  upon  shares.  —  It  is  quite  common 
in  this  country  for  the  owner  of  land  to  let  it  to  persons 
for  the  purpose  of  cultivating  it,  with  the  agreement  that 
the  parties  should  each  have  a  share  in  the  crops.  Such  con- 
tracts create  between  the  parties  different  relations  according 
to  their  intentions,  as  expressed  in  their  agreements.  If  the 
intention  appears  to  be,  that  the  land-owner  shall  lease  the 
land  to  the  former,  and  that  his  share  of  the  crop  shall  be 
received  in  lieu  of,  or  as,  rent,  the  relation  of  landlord  and 
tenant  is  created.  The  tenant  is  in  possession  of  the  land, 
and  the  landlord  has  no  vested  interest  in  the  crop,  as  a  crop. 
His  rights  in,  or  to,  any  part  of  the  crop  attach  only  upon 
a  division  and  delivery  of  the  same.1  But,  if  one  is  em- 
ployed to  work  a  farm,  with  the  understanding  that  the 
crop  shall  be  divided  between  him  and  the  land-owner,  and 
there  is  no  apparent  intention  of  leasing  the  lands  and 
taking  the  share  for  rent,  the  farmer  has  no  estate  in  the 
land  beyond  a  license  to  go  upon  it  for  the  purposes  of  cul- 
tivation ;  the  land-owner  is  in  possession  of  the  land,  and 
must  maintain  all  suits  for  trespass  and  other  injuries  to 
the  land.  The  parties  are  tenants  in  common  of  the  crop 
to  the  amount  of  their  respective  shares,  from  the  time  of 
planting  until  a  division  and  settlement  is  made.2     It  is  very 

1  Aiken  v.  Smith,  21  Vt.  181 ;  Caswell  v.  Districh,  15  Wend.  379 ;  Herskell 
v.  Bushnell,  37  Conn.  43 ;  Burns  v.  Cooper,  31  Pa.  St.  420 ;  Rinehart  v.  Olwine, 

5  Watts  &  S.  457;  Dockham  v.  Parker,  9  Mo.  137;  Butterfield  v.  Baker,  5 
Pick.  622;  Munsell  v.  Carew,  2  Cush.  50;  Newcomb  v.  Ramer,  2  Johns.  421; 
Hatchell  v.  Kinsbrough,  4  Jones  (N.  C),  163;  Hoskins  v.  Rhodes,  »1  Gill  &  J. 
26G;  Ross  v.  Swaringer,  9  Ired.  481 ;  Alwood  v.  Ruckman,  21  111.  200;  Dixon 
».  Niccolls,  39  111.  384;  Wells  v.  Preston,  25  Cal.  39 ;  Blake  v.  Coats,  3  Greene 
(Iowa),  548.  And  until  division,  they  may  be  attached  by  creditors  as  the 
property  of  the  lessee.     Kelly  v.  Weston,  20  Me.  232 ;  Deaver  v.  Rice,  4  Dev. 

6  B.  431 ;  Ross  v.  Swaringer,  9  Ired.  481. 

2  Tanner  v.  Hills,  48  N.  Y.  362;  Bradish  v.  Schenck,  8  Johns.  151;  Putnan 
».  Wise,  1  Hill,  234;  Foote  v.  Colvin,  3  Johns.  216  ;  Chandler  v.  Thurston,  10 
Pick.  205;  Daniels  v.  Brown,  84  N.  H.  454;  Moulton  v.  Robinson,  27  N.  H. 
550;  Aiken  v.  Smith,  21  Vt.  181  ;  Esdon  v.  Colburn,  28  Vt.  631  :  Jordan  t>. 
Staples,  57  Me.  455;  Guest  r.  Opdyke,  SO  N.  J.  L.  554;  Steel  v.  Frick,  66 

138 


VU.  VII.]  ESTATES    LESS    THAN    FREEHOLD.  §    201 

ofteu  difficult  to  determine  which  of  these  relations  such  a 
contract  creates.  The  only  guide  is  the  intention  of  the 
parties,  and  no  general  rules  can  be  given  except  those  above 
presented. 

Pa.  St.  172 ;  Ferrall  v.  Kent,  4  Gill,  209 ;  Lowe  v.  Miller,  3  Gratt.  205  ;  Moore 
.  Spruill,  13  Ired.  55;  Alwood  v.  Ruckman,  21  111.  200;  Creel  v.  Kirkham,  47 
111.  344;  Williams  v.  Nolen,  34  Ala.  167;  Fiquef  v.  Allison,  12  Mich.  330; 
Walker  v.  Fitts,  24  Pick.  191 ;  Delaney  v.  Root,  99  Mass.  550 ;  Smyth  v. 
Tankersley,  20  Ala.  212 ;  Walls  v.  Preston,  25  Cal.  59.  The  tenant  may  in 
such  a  case  assign  his  interest  in  the  crop.  Aiken  v.  Smith,  21  Vt.  182.  But 
see  Kelly  v.  Watson,  20  Me.  232;  Brown  v.  Lincoln,  47  N.  H.  469;  Harris 
v.  Frink,  49  N.  Y.  31.  In  Jeter  v.  Penn  (28  La.  An.  230;  26  Am.  Rep.),  it 
was  held  that  the  relation  of  the  parties  was  not  a  partnership;  that  the 
tenant  was  merely  an  employee,  and  can  be  discharged  for  cause.  He  cannot 
delegate  his  employment. 

139 


SECTION   II. 

ESTATES  AT  WILL  AND  TENANCIES  FROM  YEAR  TO  YEAR. 

Section  212.  Estates  at  will. 

213.  How  estates  at  will  may  be  determined. 

214.  Estates  at  will  distinguished  from  tenancy  from  year  to  year. 

215.  Tenancy  at  will  —  What  now  included  under  that  term. 
21G.  Tenancy  at  will  —  Arising  by  implication  of  law. 

217.  Qualities  of  tenancies  from  year  to  year 

218.  What  notice  is  required  to  determine  tenancy  from  year   to 

year. 

219.  How  notice  may  be  waived. 

§  212.  Estates  at  will. — Estates  at  will  are  those  es- 
tates which  are  determinable  at  the  will  of  either  party, 
and  arise  only  upon  actual  possession  being  taken  by  the 
tenant.1  The  tenant  at  will  has  no  interest  in  the  land 
which  he  can  convey  to  others.  The  relation  and  tenure  of 
landlord  and  tenant  exist  between  the  original  parties  to  the 
demise,  but  it  does  not  pass  to  the  tenant's  assignee.  The 
landlord  may  treat  such  assignee  as  a  disseisor,  unless  he 
accepts  rent  accruing  subsequent  to  the  assignment.  By 
acceptance  of  rent  the  assignment  would  be  confirmed,  and 
the  assignee  recognized  as  tenant.2  The  estate  of  the  les- 
sor  of  a  tenant  at  will  is  not  strictly  a  reversion,  for  the 
interest  of  the  tenant  is  "  a  mere  scintilla  of  interest, 
which  a  landlord  may  determine  by  making  a  feoffment 
upon  the  land  with  livery,  or  by  a  demand  of  possession." 
A   remainder   cannot   be   limited   upon  an  estate  at  will.3 

1  Co.  Lit.  55  a,  57  a ;  1  Washb.  on  Real  Prop.  581 ;  2  Prest  Abst.  26 ;  Pollock 
v.  Kittrell,  2  Tayl.  152. 

2  Co.  Lit.  57  a ;  1  Washb.  on  Real  Prop.  582 ;  Cunningham  v.  Houlton,  55  Me. 
33;  Cunningham  v.  Horton,  57  Me.  422;  King  v.  Lawson,  98  Mass.  309;  Hil- 
bourn  v.  Fogg,  99  Mass.  12;  Holbrook  v.  Young,  108  Mass.  85;  Reckhow  v*. 
Schanck,  43  N.  Y.  448. 

3  1  Washb.  on  Real  Prop.  584;   Ball  v.  Cullimore,  2  Cromp.  M.  &  R.  12a 

140 


Xm.  VII.]  ESTATES    AND    TENANCIES.  §    213 

The  tenant,  however,  is  entitled  to  estovers,  and  also  to 
emblements,  when  the  tenancy  is  determined  by  the  land- 
lord.1 And  he  will  also  be  liable  in  damages  for  the  com- 
mission or"  waste,  although  the  technical  action  of  waste 
might  not  lie.2 

§  213.   How  estates  at  will   may  be   determined. — An 

estate  at  will  may  be  determined  by  any  act  of  either 
party  which  indicates  an  intention  to  put  an  end  to  the  ten 
ancy,  or  which  is  inconsistent  with  the  continuance  of  the 
relation  of  landlord  and  tenant.3  The  death  of  either 
party  determines  the  estate.  If  the  lessor  dies,  the  estate 
becomes  a  tenancy  at  sufferance,  and  the  lessee's  personal 
representatives,  in  case  of  his  death,  have  no  right  to  pos- 
session under  the  tenancy.*  The  tenancy  will,  however, 
survive,  if  only  one  of  two  or  more  lessees  dies.5  Any  as- 
signment or  conveyance  of  the  reversion,  whether  voluntary 
or  involuntary,  will  destroy  the  tenancy.6  The  assignment 
or  conveyance  by  the  tenant  will  have  the  same  effect,  as 
soon  as  the  landlord  has  received  notice  of  it.    Until  notice, 


1  Co.  Lit.  65  b  ;  Washb.  on  Keal  Prop.  584 ;  Davis  v.  Thompson,  13  Me.  209; 
Brown  v.  Thurston,  56  Me.  126. 

2  Co.  Lit.  67  a;  Campbell  v.  Proctor,  6  Me.  12;  Daniels  v.  Pond.  21  Pick. 
369;  Phillips  ».  Covert,  7  Johns.  1. 

3  Turner  v.  Doe,  9  M.  &  W.  643 ;  Doe  v.  Prince,  9  Bing.  356 ;  Walden  v. 
Bodley,  14  Pet.  162;  Davis  v.  Thompson,  13  Me.  209;  Esty  v.  Baker,  50  Me. 
325;  Moore  v.  Boyd,  24  Me.  242;  Eising  v.  Stannard,  17  Mass.  281 ;  Curl  v. 
Lowell,  19  Pick.  25;  Pratt  v.  Farrar,  10  Allen,  519;  Clark  v.  Wheelock,  99 
Mass.  15;  Alton  v.  Pickering,  9  N.  H.  494;  Holly  v.  Brown,  14  Conn.  255; 
Jackson  v.  Aldrich,  13  Johns.  66;  Den  v.  Howell,  7  Ired.  496;  Hildreth  v. 
Conant,  10  Mete.  298 ;  Curtis  v.  Galvin,  1  Allen,  215. 

*  James  v.  Dean,  11  Ves.  391 ;  Morton  v.  Woods,  L.  R.  4  Q.  B.  306 ;  Reed  w. 
Reed,  48  Me.  388;  Robie  v.  Smith,  21  Me.  114;  Howard  v.  Merriam,  5  Cush. 
563;  Ferrin  v.  Kenney,  10  Mete.  294;  Cody  v.  Quaterman,  12  Ga.  386;  Man- 
chester v.  Doddridge,  3  Ind.  360. 

5  1  Washb.  on  Real  Prop.  586 ;  Co.  Lit.  55  b. 

6  Doe  v.  Thompson,  6  Eng.  Law  &  Eq.  487  ;  Hill  v.  Jordan,  30  Me.  367 ; 
Morse  v.  Goddard,  13  Mete.  177;  Howard  v.  Merriam,  5  Cush.  563;  Stedman 
«.  Gassett,  18  Vt.  346 ;  Hemphill  v.  Tevis,  4  Watts  &  S.  535. 

141 


§    214  ESTATES    AND    TENANCIES.  [PART   U 

the  landlord  may  continue  to  treat  the  lessee  as  his  tenant.1 
The  estate  at  will  in  the  cases  above  enumerated  would  be 
wholly  determined,  immediately  upon  the  commission  of  the 
act,  or  occurrence  of  the  event.  But  the  tenant  is  allowed 
a  reasonable  time  thereafter,  within  which  to  move  his 
effects  from  the  premises;  and  where  he  is  entitled  to  em- 
blements, he  may  still  enter  upon  the  land  for  the  purpose 
of  cultivating  and  harvesting  the  crops.2  No  notice  to  quit 
is  ever  required  to  determine  the  estate  at  will;  this  was 
the  early  common-law  rule,  and  still  obtains  as  an  invari- 
able incident  of  estates  strictly  at  will.3 

§  214.  Estate  at  will  distinguished  from  tenancy  from 
year  to  year.  —  In  consequence  of  the  many  hardships  re- 
sulting from  the  uncertain  tenure  of  estates  at  will,  and  the 
too  often  arbitrary  and  sudden  determination  of  them  by 
lessors,  it  became  at  an  early  day  a  rule  of  law  that,  where 
rent  was  reserved  and  paid  by  the  lessee,  the   lessor  could 

1  Co.  Lit.  57  a;  Pinhorn  v.  Souster,  20  Eng.  Law  &  Eq.  501 ;  Kelly  v. 
Waite,  12  Mete.  300;  Cooper  v.  Adams,  6  Cush.  87;  Sprague  v.  Quin,  108 
Mass.  554 ;  Cole  v.  Lake  Co.,  51  N.  H.  277  ;  Den  v.  Howell,  7  Ired.  496.  The 
tenancy  may  also  be  determined  by  the  tenant's  disclaimer  of  holding  under 
his  lessor.  Woodward  v.  Brown,  13  Pet.  1 ;  Bennock  v.  Whipple,  12  Me.  346 : 
Russell  v.  Fabyan,  34  N.  H.  223;  Towne  v.  Butterfield,  09  Mass.  105;  Boston 
v.  Binney,  11  Pick.  1 ;  Chumberlin  v.  Donahoe,  45  Vt.  55;  Sharpe  r.  Kelly,  5 
Denio,  4"1 ;  Harrison  ».  Middleton,  11  Gratt.527;  Duke  o.  Harper,  6  Yerg. 
280;  Farrow  v.  Edmundson,  4  B.  Mon.  605;  Fusselman  v.  Worthington,  14 
111.  135;  Sampson  v.  Schaeffer,  3  Cal'.  196. 

a  Co.  Lit.  56  b;  Doe  b.  McKacg,  10  B.  &  C.  721  ;  Turner  v.  Doe,  9  M.  & 
W.  647;  Ellis  v.  Paige,  1  Pick.  43;  Rising  v.  Stannard,  17  Mass.  282. 

3  Hall  v.  Burgess,  5  B.  &  C.  332;  Elliott  v.  Stone,  1  Gray,  571;  Stone  v. 
Sprague,  20  Barb.  509;  Ingraham  v.  Baldwin,  9  N.  Y.  46;  Chilton  v.  Niblett, 
3  Humph.  404  ;  Brown  v.  Keller,  32  111.  152.  No  notice  is  required  where  the 
tenancy  is  determined  by  the  tortious  acts  of  the  tenant.  Lamed  v.  Clark,  8 
Cush.  29;  Tuttlev.  Reynolds,  1  Vt.  80;  Jackson  v.  Deyo,  3  Johns.  422 :  Rosa 
r.  Garrison,  1  Dana,  35;  Clemens  v.  Bromfield,  19  Mo.  118.  And,  likewise, 
there  is  no  notice  required  where  the  tenancy  at  will  is  an  estate  upon  condi- 
tion or  limitation,  and  the  condition  is  broken,  or  the  limitation  expires.  El- 
liott v.  Stone,  1  Gray,  575  ;  Ashley  ».  Warner,  11  Grav,  T> ;  Bolton  ?•.  Landers. 
27  Cal.  105. 

142 


CH.  VII.]  ESTATES    AND    TENANCIES.  §    214 

not  terminate  the  tenancy  without  giving  due  notice  of  his 
intention  to  do  so.  Tenancies  at  will,  where  no  rent  was 
reserved,  could  be  terminated  immediately  upon  notice.1 
And  it  was  obviously  equitable  that,  in  the  institution  of 
such  a  rule,  notice  to  the  lessor  should  be  required  in  case 
the  tenant  should  wish  to  determine  the  estate.2  In  this 
way,  by  a  course  of  judicial  legislation,  arose  a  class  of  es- 
tates which  are  for  an  uncertain  period,  but  which  differ 
from  the  common-law  estates  at  will,  in  that  they  are  tenan- 
cies for  an  uncertain  number  of  fixed  periods  of  time,  ther 
duration  being  regulated  by  the  manner  of  paying  the  rent,. 
i.e.,  by  the  month,  quarter  or  year,  and  which  continue  to 
exist  as  long  as  the  required  notice  to  quit  is  not  given. 
These  estates  are  called  tenancies  from  year  to  year.3  The 
tests  by  which  it  is  determined  whether  an  estate  for  an  un- 
certain period  is  a  tenancy  from  year  to  year,  and  not  one 
at  will,  are  the  reservation  of  rent  and  the  necessity  of 
giving  notice  in  order  to  determine  the  tenancy.  If  the 
rent  is  reserved,  and  notice  to  quit  is  required,  it  is  a  ten- 

1  1  Washb.  on  Real  Prop.  583,  586,  597 ;  Damei;.  Dame,  38  N.  H.  429;  Doe 
v.  Watts,  1  T.  R.  83 ;  Doe  v.  Porter,  3  T.  R.  13 ;  Kingsbury  v.  Collins,  4  Bing. 
(13  E.  C.  L.  R.)  202 ;  Izon  v   Gorton,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  501. 

4  Kighlyw.  Bulkly,  Sid.  338 ;  Bessell  v.  Landsberg,  7  Ad.  &  E.  638;  John- 
stone v.  Huddlestone,  4  Barn.  &  Cress.  923 ;  Cooke  v.  Neilson,  10  Burr.  41 ; 
Pugsley  v.  Aikin,  11  N.  Y.  494;  Currie  v.  Perley,  24  N.  H.  225;  Hall  v. 
Wadsworth,  28  Vt.  410;  Morehead  v.  Watkins,  5  B.  Mon.  228. 

3  Right  v.  Darby,  1  T.  R.  159 ;  Hamerton  v.  Stead,  3  B.  &  C.  478 ;  Hall  v. 
Wadsworth,  28  Vt.  410;  Lockwood  v.  Lockwood,  22  Conn.  425;  McDowell  v. 
Simpson,  3  Watts,  129  ;  Lesley  v.  Randolpb,  4  Rawle,  123  ;  Jackson  v.  8almon» 
4  Wend.  327;  Webber  v.  Shearman,  3  Hill,  547;  Pugsley  v.  Aikin,  11  N.  Y. 
494;  Patton  v.  Axley,  5  Jones  L.  440;  Crommelin  v.  Thiess,  31  Ala.  419; 
Huntw.  Morton,  18111.75;  Squires  v.  Huff,  3  A.  K.  Marsh.  17;  Den  v.  Drake, 
14  N.  J.  L.  523  ;  Godard  v.  Railroad  Co.,  2  Rich.  L.  346 ;  Ridgley  v.  Stillwell, 
28  Mo.  400.  A  definite  tenancy  for  one  year  is  not  a  tenancy  from  year  to 
year,  and  does  not  require  any  notice  to  quit.  Cobb  v.  Stokes,  8  East,  358, 
Preble  v.  Hay,  32  Me.  456;  Dorrill  v.  Johnson,  17  Pick.  263;  Allen  v.  Jacquish, 
21  Wend.  628 ;  Jackson  v.  McLeod,  12  Johns.  182 ;  Den  v.  Adams,  12  N.  J.  L. 
99;  Lesley  v.  Randolph,  4  Rawle,  125;  Logan  v.  Herron,  8  Serg.  &  R.  459  ^ 
Walker  v.  Ellis,  12  111.  470. 

143 


§    215  ESTATES    AND    TENANCIES.  [PART    I. 

ancy  from  year  to  year,  and  the  length  of  the  fixed,  indeterm- 
inable period  of  the  tenancy  is  governed  by  the  time  of  paying 
the  rent.1  But  it  is  always  within  the  power  of  the  parties, 
by  express  agreement  to  give  to  the  estate  the  characteris- 
tics of  a  tenancy  at  will,  even  though  the  rent  is  reserved. 
And  if  in  such  a  case  the  tenancy  is  determined  by  the  les- 
sor between  the  interval  of  payment  of  the  rent,  the  land- 
lord can  only  recover  rent  accruing  up  to  the  last  pay-day.2 
The  term  "  year  "  in  the  tenancy  from  year  to  year  is  here 
used  as  a  unit  of  time,  and  under  the  term  tenancy  from 
year  to  year  are  included  tenancies  from  month  to  month, 
quarter  to  quarter,  and  the  like,  in  the  same  manner  as  an 
estate  for  years  includes  an  estate  for  one  month.3  Mr. 
Washburn  seems  to  exclude  these  estates  from  the  tenan- 
cies from  year  to  year,  and  calls  them  tenancies  at  will,  in 
which  notice  to  quit  is  required.4  There  is  no  necessity  for 
this  distinction,  and  the  classification  here  employed  seems 
to  bring  out  more  prominently  the  distinctive  features  of 
estates  at  will,  and  tenancies  from  year  to  year. 

§  215.   Tenancy  at  will  —  What  now  included  under  that 

1  Richardson  v.  Landgridge,  4  Taunt.  128;  Doidge  v.  Bowers,  2  M.  &  W 
365;  Rich  v.  Bolton,  4-3  Vt.  84;  14  Am.  Rep.  615;  Lockwood  t.  Lockwood,  22 
Conn.  425;  Jackson  v.  Bradt,  2  Caines,  169;  McDowell  v.  Simpson,  3  Watts, 
129;  Doe  v.  Baker,  4  Dev.  220;  Crommelin  v.  Thiess,  31  Ala.  419;  Hunt  t>. 
Morton,  18  111.  75;  Williams  v.  Deriar,  31  Mo.  1.  In  Maine  and  Massachu- 
setts the  doctrine  of  tenancies  from  year  to  year  has  never  been  adopted ;  and 
although  notice  is  now  required  to  determine  those  tenancies  which,  in  other 
States,  would  come  under  the  name  of  tenancies  from  year  to  year,  they  are 
not  recognized  there  as  having  the  characteristics  of  durability,  which  are  given 
to  them  elsewhere.  See  Moore  v.  Boyd,  24  Me,  242  ;  Withers  «;.  Larrabee,  48 
Me.  513;  Rising  v.  Stinnard,  17  Mass.  232;  Furlong  v.  Leary,  8  Cush.  409; 
Walker  t>.  Furbush,  11  Cush.  366;  Bunton  v.  Richardson,  10  Allen,  260;  Hil- 
bourn  v.  Fogy,  99  Mass.  1. 

2  Richardson  v.  Landgridge,  4  Taunt.  128;  Doe  v.  Cox,  11  Q.  B.  122; 
Cameron  v.  Little,  62  Me.  550;  Elliott  p.  Stone,  1  Gray,  571 ;  Harrison  v.  Mid- 
dle ton,  11   Gratt.  527;  Sullivan,  v.  Enders,  3  Dana,  66. 

3  See  Anderson  v.  Prindle,  2:3  Wend.  610. 

4  1  Washb.  on  Real  Prop.  598,  699,  610. 

144 


CH.  VII.]  ESTATES   AND    TENANCIES.  §    216 

term.  — As  the  Law  now  stands,  an  express  tenancy  at  will 
can  only  arise  under  two  circumstances:  first,  where  land 
is  leased  for  an  indefinite  period,  and  no  rent  is  reserved 
for  its  use  and  occupation,1  and,  secondly,  where  there  is 
rent  reserved,  and,  by  the  express  agreement  of  the  parties, 
the  tenancy  is  to  have  the  characteristics  of  a  tenancy  at 
will.     Parties  may  agree  to  waive  the  right  to  notice.2 

§  216.  Tenancy  at  will  —  Arising  by  implication  of 
law. — When  a  tenant  enters  upon  the  land  for  some  other 
purpose  than  to  create  the  relation  of  landlord  and  tenant,  and 
his  entry  is  under,  and  in  pursuance  of,  a  grant  to  him  of  a 
larger  and  more  definite  interest,  until  such  interest  is  vested 
in  him,  the  law  treats  and  considers  his  possession  as  that  of  a 
tenant  at  will.  Such  would  be  the  case  where  one  is  per- 
mitted to  enter  into  possession  under  a  contract  for  the  pur- 
chase of  the  land,  or  for  a  future  lease  of  the  same.3  The 
tenant  would  not  be  liable  for  rent  for  the  time  he  has 
occupied  the  land,  unless  there  is  an  express  agreement  to 

1  Richardson  v.  Landgridge,  4  Taunt.  128 ;  Doe  v.  Wood,  14  M.  &  W.  682  ; 
Garrard  v.  Tuck,  8  C.  B.  231 ;  Rex  v.  Collett,  1  Russ.  &  Ry.  498;  Melling  v. 
Leak,  16  C.  B.  652;  Gould  v.  Thompson,  4  Mete.  224;  Jackson  v.  Pierce,  2 
Johns.  226;  Bedford  v.  Terhune,  SON.  Y.  465;  Matthews  v.  Ward,  10  Gill  & 
J.  456.  And  where  tenant  is  in  possession  without  agreement  as  to  paying 
rent  or  the  length  of  his  holding,  and  he  refuses  to  pay  rent,  the  tenancy  is 
strictly  one  at  will,  although  he  has  been  in  possession  fourteen  years,  and  the 
six  months'  notice  required  in  cases  of  tenancies  from  year  to  year  is  not  neces- 
sary to  terminate  his  tenancy.  Rich  v.  Bolton,  46  Vt.  84;  14  Am.  Rep.  316; 
Dunne  v.  Trustees,  etc.,  36  111.  518. 

2  Richardson  v.  Landgridge,  4  Taunt.  128;  Doe  v.  Davies,  7  Exch.  89; 
Cudlip  v.  Randall,  4  Modern,  9;  Harrison  v.  Middleton,  11  Gratt.  527;  Hum- 
phries v.  Humphries,  3  Ired.  362;  Sullivan  v.  Enders,  3  Dana,  56. 

3  Hamerton  v.  Stead,  3  Barn.  &  Cress.  478 ;  Howard  v.  Shaw,  8  M.  &  W. 
118;  Doe  v.  Chamberlain,  5  M.  &  W.  14;  Gould  v.  Thompson,  4  Mete.  224; 
White  v.  Livingston,  10  Cush.  589;  Silsby  v.  Allen,  43  Vt.  177;  Jackson  v. 
Miller,  7  Cow.  747  ;  Jackson  v.  Bradt,  2  Caines,  169;  Harris  v.  Frink,  49  N.  Y. 
32 ;  Freeman  v.  Headley,  33  N.  J.  L.  523 ;  Den  v.  Edmondston,  1  Ired.  152 ; 
Jones  v.  Jones,  2  Rich.  542 ;  Carson  v.  Baker,  4  Dev.  220;  Danne  v.  Trustees, 
39  111.  583;  Dean  v.  Comstock,  32  111.  180;  Glascock  v.  Robards,  14  Mo.  350; 
Manchester  v.  Doddridge,  3  Ind.  360;  Cole  v.  Gill,  14  Iowa,  529. 

io  145 


§    216  ESTATES    AXD    TENANCIES.  [PART    I. 

that  effect.1  But  he  will  render  himself  liable  for  rent,  if 
he  retains  possession  after  the  executory  contract,  under 
which  he  entered,  has  come  to  an  end.  And  he  will  also  be 
liable  in  an  action  for  damages  for  use  and  occupation  dur- 
ing the  pendency  of  the  contract,  if  the  failure  of  such  con- 
tract is  the  result  of  his  own  refusal  or  inability  to  fulfil 
his  obligations  under  it.2  The  rent  is  recovered  in  such  a 
case,  not  on  any  implied  contract  to  pay  for  the  use  and 
occupation  in  the  event  that  the  tenant  fails  to  perform  his 
part  of  the  contract,  but  on  the  theory  that,  his  possession 
^eing  given  with  a  view  to  the  tenant's  performance  of  the 
contract,  his  failure  to  perform  makes  his  holding  a  trespass 
ab  initio  ;  or  the  rent  may  be  asked  for  as  damages  suffered 
from  the  tenant's  breach  of  the  contract  of  sale.3  In  a 
similar  manner  is  the  vendor  liable  as  tenant  at  will  for  use 
and  occupation,  if  he  retains  possession  of  the  land,  after 
the  contract  of  purchase  has  been  executed  and  the  deed  of 
conveyance  delivered.  If  the  vendor  retains  possession, 
with  consent  of  the  vendee,  the  action  will  be  on  an  implied 
contract  for  rent,  while  he  would  be  liable  in  trespass  for 

1  "Winterbottom  v.  Ingham,  7  Q.  B.  611 ;  Howard  v.  Shaw,  8  M.  &  W.  118; 
Dennett  v.  Penobscot  Company,  57  Me.  425 ;  Cunningham  v.  Holton,  55  Me. 
33;  Woodbury  v.  Woodbury,  47  N.  H.  11 ;  Hough  v.  Birge,  11  Vt.  190;  Lit- 
tle v.  Pearson,  7  Pick.  301 ;  Dakin  v.  Allen,  8  Cush.  33 ;  Vanderheuvel  v. 
Storrs,  3  Conn.  203 ;  Sylvester  v.  Ralston,  31  Barb.  286 ;  Doolittle  v.  Eddy.  7 
Barb.  74;  Hasle  v.  McCoy,  7  J.  J.  Marsh.  319;  Bell  v.  Ellis,  1  Stew.  &  P. 
294;  McKillsack  v.  Bullington,  87  Miss.  535;  Coffman  v.  Huck,  24  Mo.  496. 

2  Howard  v.  Shaw,  8  M.  &  W.  118;  Tancred  v.  Christy,  12  M.  &  W.  324; 
Gould  v.  Thompson,  4  Mete.  228 ;  Clough  v.  Hosford,  6  N.  H.  231 ;  Hall  v. 
West.  Transp.  Co.,  34  N.  T.  291;  Dwight  v.  Cutler,  3  Mich.  566;  Bogsett 
v.  Ellis,  17  Mich.  367;  Wright  v.  Roberts,  22  Wis.  161;  Pinero  v.  Judson,  6 
Bing.  206. 

s  Burdett  v.  Caldwell,  9  Wall.  293;  Chamberlain  v.  Donahue,  44  Vt.  59; 
Clough  v.  Hosford,  6  N.  H.  231 ;  Kistland  v.  Pounsett,  2  Taunt.  145 ;  Bancroft 
v.  Wardwell,  13  Johns.  489 ;  Smith  v.  Stewart,  6  Johns.  46  ;  Vanderheuvel  v. 
Storrs,  3  Conn.  203 ;  Bell  v.  Ellis,  1  Stew.  &  P.  204 ;  Brewer  v.  Conover,  13 
X.  J.  L.  215 ;  Johnson  v.  Beauchamp,  9  Dana,  124.  But  see  Forbes  v.  Smiley, 
56  Me.  174;  Boston  v.  Binney,  11  Pick.  9;  Gould  v.  Thompson,  4  Mete.  228; 
Hull  v.  Vaughan,  6  Price,  157. 

146 


CII.  VII.  J  ESTATES    AND    TENANCIES.  §    217 

damages,  if  such  holding  was  without  the  permission  of  the 
grantee.1 

§  217.  Qualities  of  tenancies  from  year  to  year.  —  As  a 

consequence  of  the  rule  requiring  a  certain  notice  of  the 
intention  to  terminate  the  estate,  before  such  termination 
can  take  place,  the  tenant  was  held  to  be  possessed  of  a 
fixed  and  indefeasible  estate  for  a  definite  period,  the  length 
of  which  is  controlled  by  the  character  and  the  terms  of  the 
contract  for  rent  (if  it  be  a  yearly  rental,  this  estate  is  for 
one  year,  and  if  the  rental  be  monthly,  it  is  for  one  month), 
together  with  an  indefinite  obligation  to  continue  the  rela- 
tion of  landlord  and  tenant,  until  it  is  determined  by  the 
proper  notice  from  either  of  the  parties.2  The  tenant's  es- 
tate survives  the  death  of  the  tenant  and  goes  to  his  personal 
representatives.  It  is  also  capable  of  assignment,3  and  the 
tenant  may  maintain  his  action  for  trespass  quare  clausum 
/regit  against  all  intruders,  including  the  landlord.4  Nor  is 
it  determined  by  the  grant  of  the  reversion  by  the  lessor. 
In  other  words,  the  estate  of  the  tenant  from  year  to  year 
cannot  be  determined,  nor  can  the  tenant  relieve  himself 
from  liability  for  rent,  except  by  giving  a  notice,  having 
the  requisites  both  as  to  length  and  the  time  of  giving  it,  of 
his  intention  to  determine  the  tenancy. 

1  Tew  v.  Jones,  13  M.  &  W.  14;  Carrier  v.  Earl,  13  Me.  216;  Nichols  v. 
Williams,  8  Cow.  13. 

»  Hamerton  v.  Stead,  3  B.  &  C.  478;  Roe  v.  Lees,  2  W.  Bl.  1173;  Rich  v. 
Bolton,  46  Vt.  84;  14  Am.  Rep.  615;  Lockwood  v.  Lockwood,  22  Conn.  425; 
Jackbon  v.  Bradt,  2  Caines,  169;  The  People  v.  Darling,  47  N.  Y.  666;  Lesley 
v.  Randolph,  4  Rawle,  123;  4  Dev.  220;  Williams  v.  Deriar,  31  Mo.  1; 
Secor  v.  Pestana,  35  111.  528. 

3  Doe  v.  Porter,  3  T.  R.  13;  Batting  v.  Martin,  1  Camp.  317;  Cody  v. 
Quarterman,  12  Ga.  386  ;  Pugsley  v.  Aikin,  11  N.  Y.  494;  1  Washb.  on  Real 
Prop.  604 ;  2  Prest.  Abst.  25.  See  Morton  v.  Woods,  L.  R.  4  Q.  B.  306 ;  Witt  v. 
Mayor  of  New  York,  6  Robt.  447. 

*  Moore  v.  Boyd,  25  Me.  242 ;  Cunningham  v.  Holton,  55  Me.  33 ;  Dickinson 
v.  Godspeed,  8  Cush.  119;  French  v.  Puller,  23  Pick.  107;  Clark  v.  Smith,  25 
Pa.  St.  437;  Cunningham  v.  Horton,  57  Me.  422. 

147 


§    218  ESTATES    AND    TENANCIES.  [PART.    I 

§  218.  What  notice  is  required  to  determine  tenancy 
from  year  to  year.  —  The  length  of  time  required  to  be 
observed  in  giving  notice  is  regulated  by  statute,  and  gener- 
ally varies  with  the  length  of  the  periods  between  the  pay- 
ments of  rent.  If  it  be  a  yearly  rental,  the  English  rule, 
which  is  followed  in  some  of  the  States,  requires  six  months' 
notice;  l  while  in  some  other  States,  a  shorter  time,  usually 
three  months,  is  required.2  If  the  rental  be  for  a  period  less 
than  one  year,  as  by  the  quarter,  the  month,  etc.,  then,  as 
a  general  rule,  the  notice  must  be  for  as  long  a  time  as  the 
periods  of  payment.3  The  notice  must  not  only  be  given 
for  a  certain  length  of  time  before  the  estate  is  to  termi- 
nate,  but  the  estate  can  only  be  determined  at  the  expira- 
tion of  the  time  during  which  the  tenant  may  lawfully  hold, 
i.e.,  at  the  end  of  each  rental  period;  it  can  only  be 
determined  at  the  end  of  the  year,  quarter,  or  month, 
according  as  the  tenancy  is  respectively  a  yearly,  quarterly, 
or'monthly  rental.4  This  notice  must  be  sufficiently  clear 
in  its  terms  as  to  the  time  when  the  tenancy  is  to  expire  ; 5 

1  Doe  v.  Watts,  7  T.  R.  83;  Bessell  v.  Landsberg,  7  Q.  B.  638;  Bar- 
low v.  Wainwright,  22  Yt.  88;  Jackson  v.  Bryan,  1  Johns.  322;  Den  v.  Drake, 
14  N.  J.  L.  523;  Den  v.  Mcintosh,  4  Ired.  291 ;  Moorehead  v.  Watkins,  5  B. 
Mon.  228 ;  Trousdale  v.  Darnell,  6  Yerg.  431 ;  Hunt  v.  Morton,  18  111.  75.  But 
see  Secor  v.  Pestana,  35  111.  528. 

2  Currier  v.  Perley,  24  N.  Y.  219 ;  Logan  v.  Herron,  8  Serg.  &  R.  459 ;  Floyd 
v.  Floyd,  4  Rich.  23. 

3  1  Washb.  on  Real  Prop.  610 ;  Taylor's  L.  &  T.  50 ;  Doe  v.  Hazell,  1  Esp. 
94;  Sanford  v.  Harney,  11  Cush.  93;  Hanchet  v.  Whitney,  1  Vt.  311;  Cun- 
ningham v.  Horton,  57  Me.  422 ;  Burns  v.  Bryant,  31  N.  Y.  453 ;  Lloyd  v. 
Cozens,  2  Ashm.  131 ;  Godard  v.  S.  C.  R.  R,  2  Rich.  346 ;  Secor  v.  Pestana,  35 
111.  528. 

*  Doe  v.  Morphett,  7  Q.  B.  577;  Cunningham  v.  Holton,  55  Me.  33; 
Hanchet  v.  Whitney,  1  Yt.  311;  Currier  v.  Barker,  2  Gray,  224;  Sanford  v. 
Harvey,  11  Cush.  93 ;  Oakes  v.  Monroe,  8  Cush.  285 ;  Burns  v.  Bryant.  31  N.  Y. 
453;  Godard  v.  S.  C.  R.  R.,  2  Rich.  346;  Lloyd  v.  Cozens,  2  Ashm.  131; 
Waters  v.  Young,  11  R.  I.  1;  23  Am.  Rop.  409;  Steffons  v.  Earl,  40  N.  J.  L. 
128;  29  Am.  Rep.  214;  Woodrowv.  Michael,  13  Mich.  190. 

5  Mills  v.  Goff,  14  M.  &  W.  72;  Hanchet  v  Whitney,  1  Yt.  311 ;  Currier 
v.  Barker,  2  Gray,  224;  Huvser  v.  Chase,  13  Mich.  102;  Woodrow  v.  Michael, 
148 


CH.  VII.]  '  ESTATES    AND    TENANCIES.  §    219 

and  must,  as  a  general  rule,  be  served  upon  the  tenant  per- 
sonally, although  it  may  be  left  at  the  tenant's  dwelling- 
house,  with  a  servant  or  other  person  of  discretionary  age, 
who  appears  to  be  in  charge  of  the  premises.' 

§  219.  How  notice  may  be  waived.  —  Such  notice,  when 
it  fulfils  all  the  requirements  of  the  law,  puts  an  end  to  the 
tenancy,  unless  the  landlord  accepts  rent  accruing  after  the 
expiration  of  the  notice.  Such  acceptance  of  rent  will  gen- 
erally constitute  a  waiver  of  the  notice,  and  the  tenancy 
becomes  re-established.2  But  in  all  such  cases  it  is  a  matter 
depending  upon  the  intention  of  the  parties,  and  the  receipt 
of  such  rent  is  open  to  explanation,  and  the  evidence  is  ad- 
missible to  show  that  the  landlord  had  no  intention  of  waiv- 
ing the  notice,  provided  the  tenant  also  had  knowledge  of 
that  fact.3 

Ibid.  190;  Granger  v.  Brown,  11  Cush.  191;  Doe  v.  Morphett,  7  Q.  B.  577; 
Doe  v.  Smith,  5A.&E.  350 ;  Doe  v.  Wilkinson,  12  A.  &  E.  743. 

1  Doe  v.  Dunbar,  1  Mood.  &  M.  10 ;  Jones  v.  Marsh,  464 ;  Hatstat  v.  Packard, 
7  Cush.  245;  Walker  v.  Sharpe,  103  Mass.  154;  Birdsall  v.  Phillips,  17  Wend. 
464;  Schillings.  Holmes,  23  Cal.  231.  If  left  upon  the  premises,  without  being 
placed  in  the  hands  of  some  responsible  person,  it  will  only  be  a  good  notice 
to  quit,  if  it  actually  reaches  the  tenant. 

2  Doe  v.  Palmer,  16  East,  53;  Tuttle  v.  Bean,  13  Mete.  275;  Farson  v. 
Goodale,  8  Allen,  202 ;  Norris  v.  Morrill,  43  N.  H.  218 ;  Collins  v.  Canty,  6 
Cush.  415 ;  Prindle  v.  Anderson,  19  Wend.  391 ;  Kimball  v.  Rowland,  6  Gray, 
224. 

3  Doe  v.  Humphries,  2  East,  237 ;  Goodright  v.  Cordwent,  6  T.  R.  219 ; 
Kimball  v.  Rowland,  6  Gray,  224;  Prindle  v.  Anderson,  19  Wend.  391. 

149 


SECTION  III. 


TENANCY    AT    SUFFERANCE. 


Section  225.  Tenancy  at  sufferance,  what  is. 

226.  Incidents  of  tenancy  at  sufferance. 

227.  How  the  tenancy  is  determined. 

228.  The  effect  of  forcible  entry. 

§  225.  Tenancy  at  sufferance,  what  is. — When  one, 
who  has  come  lawfully  into  the  possession  of  lands  under 
an  agreement  with  the  owner,  retains  such  possession,  after 
his  right  to  it  is  determined,  he  is  said  to  be  a  tenant  at  suf- 
ferance. His  estate  is  an  unlawful  one  ;  he  has,  in  fact,  no 
right  to  possession,  but  yet  is  not  a  trespasser.1  Such  are 
all  persons  who  continue  in  possession,  after  the  determina- 
tion of  their  particular  estate,  by  and  under  which  they 
originally  acquired  possession.  Tenants  for  years  after  the 
expiration  of  their  terms,  tenants  pur  autre  vie  after  the 
death  of  the  cestui  que  vie,  sublessees  after  the  determination 
of  the  original  lease  and  the  like,  are  all  tenants  at  suffer- 
ance.2 But  in  order  that  a  tenancy  at  sufferance  may 
arise,  the  estate,  under  which  possession  was  originally 
gained,  must  have  been  created  by  the  agreement  of  the 
parties.  If  one  enters  into  the  possession  by  the  act 
or  authority  of  the  law,  as,  for  example,  a  guardian, 
and  retains  possession  after  the  law  ceases  to  authorize 
it,  he  is  a  trespasser  and  not  a  tenant  at  sufferance.8     And  a 

1  2  Bla.  Com.  150;  1  Washb.  on  Real  Prop.  616;  Co.  Lit.  57  b;  Williams 
on  Real  Prop.  389;  Doe  v.  Hull,  2  D.  &  R.  38;  Russell  v.  Fabyan,  34  N.  11. 
218 ;  Uridias  v.  Morrell,  25  Cal.  35. 

2  Co.  Lit.  57  b;  2  Bla.  Com.  150;  Simkin  v.  Ashhurst,  1  Crompt.  M.  &  R. 
261;  Benedicts.  Morse,  10  Mete.  223;  Creech  v.  Crockett,  6  Cash.  133;  Jack- 
son v.  Parkhurst,  5  Johns.  128;  Hyatt  v.  Wood,  4  Johns.  150;  Livingston  r. 
Tanner,  12  Barb.  481 ;  Smith  p.  Littlefield,  51  N.  Y.  543. 

3  Co.Lit.67b;  1  Washb.  on  Real  Prop.  618;  Merrill  v.  Bullock,  105  Mass. 
491. 

150 


CH.  VII.]        TENANCY  AT  SUFFERANCE.  §  226 

tenancy  at  sufferance  would  only  exist,  where  the  holding 
over  is  not  in  pursuance  of  an  agreement  between  the  par- 
ties. Such  an  agreement  would  change  the  relation  from  a 
tenancy  at  sufferance  to  one  at  will  or  from  year  to  year.1 
And  although  an  agreement  in  the  original  lease,  to  pay 
rent  for  the  time  that  the  tenant  continues  in  possession 
after  the  expiration  of  his  term,  will  not  take  away  from 
such  holding  over  the  character  of  a  tenancy  at  sufferance, 
yet  the  actual  payment  and  receipt  of  rent,  in  pursuance  of 
such  an  agreement  or  without  any  previous  agreement,  will 
make  the  holding  a  tenancy  at  will,  or  one  from  year  to 
year,  according  to  the  circumstances.2 

§  226.  Incidents  of  tenancy  at  sufferance. — Unlike 
all  other  tenancies,  it  does  not  rest  upon  privity  of  contract. 
It  is  created  by  implication  of  law,  for  the  purpose,  perhaps 
the  sole  purpose,  of  establishing  between  the  owner  and  the 
person  holding  over  the  tenure,  usually  existing  between 
landlord  and  tenant.  As  a  consequence  of  this  tenure,  a 
tenant  at  sufferance  cannot,  in  an  action  by  the  reversioner 
for  the  recovery  of  the  possession,  deny  the  title  of  his 
lessor,  or  set  up  in  defence  a  superior  title  which  he  has  ac- 
quired by  purchase.3  Nor  can  the  tenant  give  to  his  holding 
the  character  of  adverse  possession,  so  as  to  bar  the  lessor's 
claim  under  the  Statute  of  Limitations.4  It  has  been  stated 
that  the  statute  may  run  against  the  landlord  in  an  estate  for 
years,  where  the  tenant  gives  actual  notice  by  word  or  deed 
that  he  is  claiming  adverse  possession,  and  that  the  statute 

1  1  Washb.  on  Real  Prop.  618,  619. 

3  Russell  v.  Fabyan,  84  N.  H.  223 ;  Edwards  v.  Hale,  9  Allen,  462 ;  Em- 
mons v.  Scudder,  116  Mass.  367;  Schuyler  v.  Smith,  51  N.  Y.  309;  Finney  v. 
St.  Louis,  39  Mo.  177 ;  Hunt  v.  Bailey,  lb.  257 ;  Bircher  v.  Parker,  40  Mo. 
148. 

3  Jackson  v.  McLeod,  12  Johns.  182 ;  Griffin  v.  Sheffield,  38  Miss.  390 ;  1 
Washb.  on  Real  Prop.  618,  G19. 

*  1  Washb.  on. Real  Prop.  620;  Doe  v.  Hull,  2D.  &  R.  38.  See  Edwards 
v.  Hale,  9  Allen,  464;  Gwynn  v.  Johns  2  Gill  &  J.  173. 

151 


§  228  TENANCY  AT  SUFFERANCE.  [PART  I. 

will  run  from 'the  time  that  such  notice  is  given.  Such, 
presumably,  is  the  law  also  in  respect  to  tenancies  at  suffer- 
ance. The  tenure  existing  between  the  lessor  and  his  ten- 
ant at  sufferance  is  identical,  in  character  and  scope,  with 
that  between  landlord  and  tenant  for  years.  For  the  de- 
tails of  the  doctrine,  reference  may  be  had  to  the  chapter  on 
estates  for  years.1  The  tenant  at  sufferance  has,  however, 
no  estate  which  he  may  assign,  and  if  he  attempts  an  assign- 
ment, his  assignee  upon  entry  into  possession  becomes  a 
trespasser  and  disseisor,  and  has  neither  the  rights  nor  the 
obligations  of  a  tenant  at  sufferance.2 

§  227.  How  the  tenancy  is  determined.  — The  tenancy 
is  determined  by  the  entry  of  the  lessor  upon  the  land,  and 
then  the  quondam  tenant  is  a  trespasser,  and  may  be  treated 
as  such.3  And  although  the  tenant  at  sufferance  is  not  liable 
for  rent  (except  by  statute),  yet  he  is  liable  to  the  lessor  in 
an  action  for  the  mesne  profits.4 

§  228.  The  effect  of  forcible  entry. — A  statute  was 
passed  in  the  reign  of  Richard  II.,  forbidding  entries  upon 
land  in  support  of  one's  title  *'  with  strong  hand  or  a  mul- 
titude of  people,  but  only  in  a  peaceable  and  easy  manner," 

1  See  ante,  sect.  200. 

a  Nepeau  v.  Doe,  2  M.  &  W.  911 ;  Thunder  v.  Belcher,  3  East,  451 ;  Reck- 
how  v.  Schanck,  43  N.  Y.  448;  Layman  v.  Throp,  11  Ired.  352;  1  Washb.  on 
Real  Prop.  261. 

8  Until  entry  is  made,  the  land-owner  cannot  treat  the  tenant  at  suffer- 
ance as  a  trespasser.  2  Bla.  Com.  150 ;  Co.  Lit.  57  b ;  Carl  v.  Lowell,  19  Pick. 
27 ;  Butcher  v.  Butcher,  7  B.  &  C.  399 ;  Newton  v.  Harland,  1  Mann.  &  G.  644 ; 
Rising  v.  Stannard,  17  Mass.  282.  The  successful  issue  of  an  action  of  eject- 
ment is  equivalent  to  an  entry.  No  notice  to  the  tenant  at  sufferance  is  re- 
quired to  terminate  his  estate,  or  to  bring  ejectment,  unless  a  statute  expressly 
requires  it.  Hollis  v.  Pool,  3  Mete.  350;  Mason  v.  Denison,  11  Wend.  612; 
Smith  v.  Littlefield,  51  N.  Y.  643 ;  Howard  v.  Carpenter,  22  Md.  25 ;  Young  v. 
Smith,  28  Mo.  65 ;  Bennett  v.  Robinson,  27  Mich.  32. 

*  Sargent  v.  Smith,  12  Gray,  426;  Merrill  v.  Bullock,  105  Mass.  490;  Cun- 
ningham v.  Holton,  55  Me.  33;  Stockton's  Appeal,  64  Pa.  St.  63;  Hogsett  v. 
Ellis,  17  Mich.  368 ;  1  Washb.  on  Real  Prop.  619,  620. 
152 


CH.  VII.]         TENANCY  AT  SUFFERANCE.  §  228 

and  providing  for  the  punishment  of  such  offences  by 
indictment  and  arraignment  in  the  criminal  courts.  Similar 
statutes  have  been  passed  in  most,  if  not  all,  of  the  States 
of  this  country.  The  question  has  been  mooted  from  an 
early  period,  whether  it  was  the  purpose  of  the  statute  to  take 
away  the  common-law  right  to  recover  one's  lawful  posses- 
sion by  force  of  arms,  or  simply  to  provide  a  punishment  for 
the  breach  of  the  public  peace  thereby  occasioned.  Al- 
though there  are  decisions  and  some  authorities,  which  main- 
tain  that  the  statute  has  this  double  effect,  and  that  such 
forcible  entry  would  lay  the  lawful  owner  open  to  civil  actions 
for  trespass  and  for  assault  and  battery,1  yet  the  weight  of 
authority  both  in  the  courts  of  England  and  of  this  country 
is  certainly  in  favor  of  confining  the  operation  of  the  statute 
to  a  criminal  prosecution  for  the  prohibited  entry.  The  de- 
cisions cited  below  maintain  that  the  plea  of  liberum  tenemen- 
tum  is  a  good  plea  to  every  action  of  trespass  quare  clausum 
fregit,  and  even  if  the  tenant  is  forcibly  expelled  and  suffers 
personal  injuries  therefrom,  no  civil  action  for  any  purpose 
will  lie,  unless  the  force  used  was  greater  than  what  was 
necessary  to  effect  his  expulsion.2 

1  Reeder  v.  Pardy,  41  111.  261 ;  Doty  v.  Burdick,  83  111.  473 ;  Knight  v. 
Knight,  90  111.  208 ;  Dustin  v.  Cowdry,  23  Vt.  631 ;  Whittaker  v.  Perry,  38  Vt. 
107  (but  see  contra,  Beecher  v.  Parmelee,  9  Vt.  352;  Mussey  v.  Scott,  32  Vt. 
82).     See  Moore  v.  Boyd,  24  Me.  247. 

2  Harvey  v..  Brydgos,  13  M.  &  W.  437;  Davis  v.  Burrell,  10  C.  B.  821; 
Hilbourne  v.  Fogg,  99  Mass.  11;  Churchill  v.  Hulbert,  110  Mass.  42;  15  Am. 
Rep.  578;  Clark  v.  Kelliher,  107  Mass.  406;  Stearns  v.  Sampson,  59  Me.  568; 
Sterling  v.  Warden,  51  N.  H.  239 ;  12  Am.  Rep.  80 ;  Livingston  v.  Tanner,  14  N. 
Y.  64 ;  The  People  v.  Field,  52  Barb.  198 ;  a.  c.  1  Lans.  242 ;  Estes  v.  Kedsey,  8 
Wend.  560;  Kellam  v.  Jansom,  17  Pa.  St.  467;  Zell  v.  Reame,  31  Pa.  St.  304; 
Todd  v.  Jackson,  26  N.  J.  L.  525 ;  Walton  v.  Fill,  1  Dev.  &  B.  507 ;  Johnson 
v.  Hanahan,  1  Strobh.  313;  Tribble  v.  Frame,  7  J.  J.  Marsh.  599;  Krevet  v. 
Meyer,  24  Mo.  107;  Fuhr  v.  Dean,  26  Mo.  116.  The  exercise  of  sufficient 
force  after  a  peaceable  entry  to  eject  a  tenant,  ia  lawful,  and  cannot  sustain  an 
action  for  assault  and  battery.  Stearns  v.  Sampson,  59  Me.  568 ;  8  Am.  Rep. 
442. 

153 


CHAPTER    Till. 

JOINT    ESTATES. 

Section  I.  —  Classes  of  joint  estates. 

II.  —  Incidents  common  to  all  joint  estates. 
III.  —  Partition. 

Section  235.  Joint  estates,  what  are. 

§  235.  Joint  estates,  what  are.  —  After  discussing  the 
various  estates  which  might  be  created  in  lands,  in  respect 
to  their  duration,  it  is  necessary  to  inquire  into  their  quali- 
ties, in  respect  to  the  number  of  owners.  From  this  stand- 
point, estates  are  divided  into  two  classes,  —  estates  in 
severalty  and  joint  estates.  An  estate  in  severalty  is,  as 
the  name  implies,  one  which  is  held  and  enjoyed  by  one  to 
the  exclusion  of  all  the  world.1  Joint  estates  are  all  other 
estates,  the  title  to  which  is  vested  in  two  or  more  persons. 
These  are  again  subdivided  into  joint  tenancies,  tenancies 
in  common,  estates  in  coparcenary,  tenancies  by  the  en- 
tirety and  partnership  estates. 

SECTION  I. 

CLASSES    OF   JOINT   ESTATES. 

I.  — Joint-tenancy. 
II.  —  Tenancy  in  common. 

III.  — Estates  in  coparcenar}\ 

IV.  —  Estates  in  entirety. 

V.  —  Estates  in  partnership. 

Section  236.  Joint-tenancy,  what  is. 

237.  Incidents  of  joint-tenancy. 

238.  Doctrine  of  survivorship,  —  how  right  of  survivorship  is   de- 

stroyed. 

239.  Tenancy  in  common,  what  is. 

1  1  Washb.  on  Keal  Prop.  642 ;  2  Bla.  Com.  179. 
154 


€H.  VIII.]  JOINT    ESTATES.  §    237 

Section  240.  Joint  estates,  when  tenancies  in  common. 

241.  Tenancy  in  coparcenary. 

242.  Estates  in  entirety. 

243.  Estates  in  entirety  in  a  joint-tenancy,  or  tenancy  in  common. 

244.  Tenancy  in  common  between  husband  and  wife. 

245.  Estates  in  partnership. 

246.  Several  interests  of  partners. 

§  236.  Joint-tenancy,  what  is.  —  A  joint-tenancy  is  an 
estate  held  by  two  or  more  persons  jointly,  so  that  during 
the  lives  of  all  they  are  equally  entitled  to  the  enjoyment  of 
the  land,  or  its  equivalent  in  rents  and  profits;  but,  upon 
the  death  of  one,  his  share  vests  in  the  survivor  or  sur- 
vivors, until  there  be  but  one  survivor,  when  the  estate  be- 
comes one  in  severalty  in  him,  and  descends  to  his  heirs  upon 
his  death.1  There  may  be  a  joint-tenancy  in  any  one  of  the 
estates  before  explained,  in  fee,  for  life,  or  for  years  and  the 
like.2  But  for  a  reason  which  will  be  made  clear  by  a  sub- 
sequent paragraph,  a  joint  estate  can  only  be  created  by 
purchase.     It  cannot  be  acquired  by  descent.3 

§  237.  Incidents  of  a  joint-tenancy.  — It  is  said  that  for 
the  creation  of  a  joint-tenancy,  the  four  unities  of  estate 
must  be  present,  viz.  :  unity  of  interest,  title,  time,  and 
possession.4  All  the  tenants  must  have  the  same  interest 
in  the  land  in  respect  to  the  duration  of  the  estate.  One 
cannot  be  tenant  for  life,  while  another  is  tenant  in  fee.  By 
unity  of  title  is  meant,  that  all  must  acquire  their  interests 
by  the  same  title.  One  cannot  hold  by  one  deed,  and  an- 
other by  a  second  deed.  The  estate  must  vest  at  the  same 
time,  otherwise  there  will  be  no  unity  of  time.  Two  per- 
sons cannot  be  joint-tenants,  where  the  estate  is  granted  in 
remainder  to  the  heirs  of   two  living  persons.     The  death 

1  1  Washb.  on  Real  Prop.  642 ;  1  Prest.  Est.  130;  2  Bla.  Com.  179,  183. 

2  1  Washb.  on  Real  Prop.  642,  643;  2  Bla.  Com.  179. 

3  1  Washb.  on  Real  Prop.  643;  2  Bla.  Com.  180. 
'  1  Washb.  on  Real  Prop.  643 ;  2  Bla.  Com.  180. 

155 


§    237  JOINT    ESTATES.  [PART   I. 

of  one,  during  the  life  of  the  other,  would  cause  the  share* 
of  his  heirs  to  vest  before  the  others.  Finally,  the  estate 
must  take  effect  in  possession  at  the  same  time.  One  can- 
not have  an  estate  in  possession,  while  the  other  has  an 
estate  in  remainder.  Joint-tenants,  therefore,  "  have  one 
and  the  same  interest,  accruing  by  one  and  the  same  convey- 
ance, commencing  at  one  and  the  same  time,  and  held  by 
one  and  the  same  possession."  *  And  whenever  these  four 
unities  were  present  in  a  joint  estate,  the  estate  was  con- 
strued at  common  law  to  be  a  joint-tenancy,  unless  the 
grantor  by  express  limitation  gave  the  estate  a  different 
character.2  But  the  American  law  has  been  in  opposition 
to  joint-tenancy,  and  has  shown  more  favor  to  tenancies  in 
common.  The  doctrine  of  survivorship  has  been  consid- 
ered repugnant  to  the  American  sense  of  justice  to  the 
heirs.  A  number  of  the  States  have  by  statute  abolished 
joint-tenancy  altogether,  except  in  the  case  of  trustees  and 
other  persons,  holding  a  joint-estate  in  a  fiduciary  capacity;* 
while  it  may  be  stated  as  a  general  rule  in  the  rest  of  the 
States,  that  a  joint-estate  will  be  presumed  in  every  case, 
except  that  of  trustees,  etc.,  to  be  a  tenancy  in  common, 
unless  expressly  declared  to  be  a  joint-tenancy,  even  though 


i  2  Bla.  Com.  180,  181,  182. 

2  1  Washb.  on  Real  Prop.  643;  Williams  on  Real  Prop.  132;  Rigden  v. 
Vallier,  3  Atk.  734.  But  sometimes  the  intention  to  create  a  tenancy  in  common 
is  established  by  implication,  as,  for  example,  where  the  land  was  purchased 
with  the  intention  of  expending  large  sums  in  the  improvement  of  the  prop- 
erty, and  there  is  no  relationship  between  the  co-tenants  to  support  the  con- 
trary presumption,  that  the  estate  was  intended  to  be  a  joint-tenancy.  See 
Lake  v.  Craddock,  3  P.  Wins.  158;  Cuyler  v.  Bradt,  2  Caines,  326;  Caines  v. 
Grant's  Lessee,  5  Binn.  196;  Duncan  v.  Forrer,  6  Binn.  196. 

3  Statutes  of  this  character  exist  in  Virginia,  North  Carolina,  South  Caro- 
lina, Pennsylvania,  Georgia,  Florida,  Kentucky,  Tennessee,  Alabama,  Missis- 
sippi, Texas,  Ohio,  and  Connecticut.  1  Washb.  on  Real  Prop.  644,  note.  See 
also  Phelps  v.  Jepson,  1  Root,  48;  Ball  v.  Deas,  1  Strobh.  Eq.  24;  Parson 
v.  Boyd,  20  Ala.  112;  Nichols  v.  Denny,  37  Miss.  59;  Kennedy's  Appeal,  6 
Pa.  St.  511 ;  Jenk's  Lessee  v.  Backhouse,  1  Binn.  91 ;  Baird's  Appeal,  8  Watt* 
&  S.  459 ;  Miles  v.  Fisher,  10  Ohio,  1. 

156 


CH.  VIII.]  JOINT   ESTATES.  §    238 

the  four  unities  are  present.1  Joint-mortgagees  hold  by 
joint-tenancy,  until  the  property  is  sold  under  foreclosure, 
when  they  become  tenants  in  common.2 

§  238.  Doctrine  of  survivorship,  —  how  right  of  sur- 
vivorship is  destroyed.  —  The  chief  incident  of  joint-tenan- 
cies, and  that  which  distinguishes  them  from  tenancies  in 
common,  is  the  right  of  survivorship.  Although  the  estate 
is  limited  to  two  or  more  and  their  heirs,  the  entire  estate 
falls  to  the  survivor  or  survivors  upon  the  death  of  one, 
to  the  exclusion  of  his  heirs.3  Nor  does  the  wife  or 
husband  of  the  deceased  joint-tenant  have  respectively 
dower  or  curtesy  in  the  estate.4  For  the  reason  that  cor- 
porations cannot  be  said  to  die,  and  therefore  there  can  be  no 
survivorship,  if  two  corporations  hold  land  jointly,  they 
axe  tenants  in  common,  and  not  joint-tenants.5  Joint-tenants 

1  This  statutory  rule  prevails  in  Maine,  Massachusetts,  New  Hampshire, 
Vermont,  Rhode  Island,  New  York,  Delaware,  Maryland,  Michigan,  Minne- 
sota, Illinois,  Wisconsin,  Missouri,  Indiana,  Arkansas,  Iowa,  California.  1 
Washb.  on  Real  Prop.  *644,  note.  See  also  Webster  v.  Vandeventer,  6  Gray, 
428;  Jones  v.  Crane,  10  Gray,  303;  Stimpson  v.  Butterman,  5  Cush.  153; 
Purdy  v.  Purdy,  3  Md.  Ch.  547;  Hoffman  v.  Stigers,  28  Iowa,  302. 

2  Kinsley  v.  Abbott,  19  Me.  430;  Pearce  v.  Savage,  45  Me.  90;  Donnels 
v.  Edwards,  2  Pick.  617 ;  Appleton  v.  Boyd,  7  Mass.  131 ;  Deloney  v.  Hutchi- 
son, 2  Rand.  183  ;  Martin  v.  McReynolds,  6  Mich.  72.  If  the  debt  is  joint,  it 
goes  to  the  survivor  and  he  alone  must  sue.  Webster  v.  Vandeventer,  6  Gray, 
428.  But  if  the  debts  are  several,  belonging  to  different  persons,  who  together 
constitute  the  joint-mortgagees,  the  doctrine  of  survivorship  does  not  apply. 
In  the  event  of  the  death  of  one  of  them,  his  personal  representatives  or  heirs, 
according  to  the  local  law,  must  be  made  joint  parties  with  the  survivors. 
Brown  v.  Bates,  55  Me.  522;  Burnett  v.  Pratt,  22  Pick.  551.  And  although 
jomt-disseisors  do  not  strictly  hold  in  joint-tenancy,  it  is  a  familiar  rule  of  the 
law  of  adverse  possession  that,  if  one  abandons  the  property,  the  other  takes 
the  entire  estate.  Putney  v.  Dresser,  2  Mete.  583 ;  Allen  v.  Holton,  20  Pick. 
458. 

3  1  Washb.  on  Real  Prop.  643 ;  2  Bla.  Com.  183 ;  Williams  on  Real  Prop. 
134. 

4  1  Washb.  on  Real  Prop.  649 ;  Co.  Lit.  37  b. 

5  1  Washb.  on  Real  Prop.  643 ;  Dewitt  v.  San  Francisco,  2  Cal.  289. 

157 


§    238  JOINT    ESTATES.  [PART   I. 

are  said  to  hold  the  entire  estate  per  my  et  per  tout* 
individually  and  jointly.  Upon  the  death  of  one,  the  others 
do  not  acquire  a  new  interest  in  the  land  by  descent  from 
the  deceased.  Their  interest  is  only  indirectly  increased 
by  the  extinguishment  of  the  deceased  joint-tenant's  inter- 
est. For  this  reason,  in  a  conveyance  by  one  joint-tenant 
to  another,  a  release  is  not  only  sufficient  to  vest  in  the  lat- 
ter the  entire  estate,  but  it  is  the  only  proper  common-law 
mode  of  assignment.2  But  the  ordinary  deeds  of  grant  will 
operate,  as  well  as  a  technical  release,  in  conveying  or  ex- 
tinguishing a  joint-tenant's  interest.3  The  survivor's  estate 
will  be  subject  to  the  same  encumbrances  as  were  imposed 
by  him  upon  his  share  of  the  joint -tenancy  before  the  death 
of  his  co-tenant.4  But  a  joint-tenancy,  and  therewith  the 
right  of  survivorship,  may  be  destroyed  by  a  conveyance  by 
one  joint-tenant  to  a  third  person.  Although  he  has  not 
the  power  to  devise  his  interest,  and  although  there  is  a  joint 
possession  and  interest  in  the  estate,  he  may  alien  his  share 
to  a  stranger.  Such  a  stranger  would  at  once  become  a 
tenant  in  common,  and  the  alienation  would  thus  destroy 
the  right  of  survivorship.5 


1  1  Washb.  on  Real  Prop.  642  ;  2  Bla.  Com.  182.  Blackstone  translates  per- 
my  (mie)  et  per  tout,  by  the  half  or  moiety,  and  by  the  whole.  In  Williams 
on  Real  Prop.  136,  Mitchell's  note,  a  note  to  Murray  v.  Hall,  7  Mann.  Gr.  & 
Sc.  (62  Eng.  C.  L.  R.)  455,  is  cited  to  the  effect  that  the  proper  rendering  of 
me  (mj*)  is  nothing  or  not  in  the  least. 

1  Williams  on  Real  Pr.  134,  135;  Co.  Lit.  169  a;  1  Washb.  on  Real  Prop. 
648;  1  Prest.  Est.  136;  Rector  v.  Waugh,  17  Mo.  13. 

3  1  Washb.  on  Real  Prop.  648 ;  Eustace  v.  Scawen,  Cro.  Jac.  696 ;  Chester 
v.  Willan,  2  Saund.  96  a. 

4  1  Washb.  on  Real  Prop.  646  ;  Co.  Lit.  185  b  ;  Lord  Abergaveny's  Case,  6 
Rep.  78. 

5  1  Washb.  on  Real  Prop.  647,  648 ;  Co.  Lit.  273  b.  One  joint-tenant  may 
mortgage  his  interest  in  the  estate,  and  to  that  extent  will  the  jus  accrescendi 
be  destroyed  or  rather  suspended.  York  v.  Stone,  1  Sulk.  158;  1  Eq.  Cas. 
Abr.  293 ;  Simpson  v.  Amnions,  1  Binn.  175.  But  it  cannot  be  taken  away  by 
ii  devise  of  the  deceased  co-tenant's  share.  Co.  Lit.  185  b  ;  Duncan  v.  Forrer, 
6  Binn.  193. 

158 


CH.  VIII.]  JOINT    ESTATES.  §     239 

§  239.  Tenancy  in  common,  what  is. — Tenancy  in 
common  is  a  joint  estate,  in  which  there  is  unity  of  posses- 
sion, but  separate  and  distinct  titles.  The  tenants  have 
separate  and  independent  freeholds  or  leaseholds  in  their 
respective  shares,  which  they  manage  and  dispose  of  as 
freely  as  if  the  estate  was  one  in  severalty.  There  is  no 
restriction  upon  their  power  of  alienation.1  And  the  ten- 
ant may  dispose  of  it  by  will,  while  the  heirs  of  an  intestate 
tenant  will  inherit  the  estate.  In  like  manner,  the  husband 
or  wife  of  a  tenant  in  common  will  have,  respectively,  cur- 
tesy and  dower  in  this  species  of  joint  estate.2  The  interest 
of  one  tenant  in  common  is  so  independent  of  that  of  his 
co-tenant,  that  in  a  joint  conveyance  of  the  estate  it  wTould 
be  treated  as  a  grant  by  each  of  his  own  share  in  the  estate.3 
And,  unlike  joint-tenancies,  in  order  to  convey  the  share 
of  one  co-tenant  to  another,  the  same  formal  deed  is  re- 
quired as  in  a  conveyance  of  it  to  a  stranger.     A  simple 

1  1  Washb.  on  Real  Prop.  652,  653 ;  Brown  v.  Wellington,  106  Mass.  818  ; 
8  Am.  Rep.  330;  Butler  v.  Roys,  25  Mich.  53;  12  Am.  Rep.  218.  A  co-ten- 
ant's interest  may  be  mortgaged.  Green  v.  Arnold,  11  R.  I.  364  ;  23  Am.  Rep. 
466.  And  it  can  be  levied  upon  in  satisfaction  of  the  co-tenant's  debts. 
Boylston  Insurance  Co.  v.  Davis,  68  N.  C.  17;  12  Am.  Rep.  624;  Newton  v. 
Howe  and  Drury,  29  Wis.  531 ;  9  Am.  Rep,  616 ;  Peabody  v.  Minot,  24  Pick. 
329;  Duncan  v.  Sylvester,  24  Me.  482;  Whilton  v.  Whilton,  38  N.  H.  127; 
Griswold  v.  Johnson,  5  Conn.  363 ;  Prim  v.  Walker,  38  Mo.  97 ;  White  v. 
Sayre,  2  Ohio,  302 ;  McKey  v.  Welch,  22  Texas,  390. 

1  1  Washb.  on  Real  Prop.  654. 

s  1  Washb.  on  Real  Prop.  656 ;  2  Prest.  Abst.  77.  And  in  the  same  man- 
ner, if  a  covenant  of  warranty  in  the  conveyance  of  a  tenancy  in  common  is 
broken,  each  co-tenant  can  sue  individually  for  the  breach.  Lamb  v.  Dan- 
forth,  59  Me.  322 ;  8  Am.  Rep.  426.  But  they  must  join  in  an  action  for  the 
recovery  of  the  possession.  Co.  Lit.  200  a ;  Rehoboth  v.  Hunt,  1  Pick.  224 ; 
Allen  v.  Gibion,  4  Rand.  468;  Johnson  v.  Harris,  5  Hayw.  113;  Young  v. 
Adams,  14  B.  Mon.  127;  Hines  v.  Frantham,  27  Ala.  359;  Hughes  v.  Holli- 
day,  3  Greene  (Iowa),  30 ;  Muller  v.  Boggs,  25  Cal.  187.  Contra,  Hillhouse  v. 
Mix,  1  Root,  246.  And  in  the  same  manner  they  must  sue  jointly  for  injuries 
to  the  possession,  such  as  trespass,  nuisance,  etc.  Phillips  v.  Sherman,  61  Me. 
548;  Merrill  v.  Berkshire,  11  Pick.  269;  Austin  v.  Hall,  13  Johns.  286;  Dupuv 
v.  Strong,  37  N.  Y.  372 ;  Doe  v.  Botts,  4  Bibb.  420 ;  Parke  v.  Kilham,  8  Cal.  77. 

159 


§    240  JOINT   ESTATES.  [PART   I. 

technical  release,  without  words  of  inheritance,  would  not 
be  sufficient.  Tenants  in  common  are  not  seised  of  the 
entire  estate.     They  do  not  hold  it  per  my  et per  tout.1 

§  240.  Joint    estates,    when    tenancies  in  common. — 

The  common-law  rule  was  that  all  estates,  acquired  by  pur- 
chase, under  circumstances  which  prevented  the  presence 
and  existence  of  the  so-called  four  unities,  were  tenancies 
in  common.2  But,  as  has  been  explained  above,  the  rule 
has  now  been  changed  and  modified  in  this  country,  so  that 
the  general  rule  here  is  that  all  joint  estates  are  held  to  be 
tenancies  in  common,  where  the}'-  are  not  expressly  made 
joint-tenancies,  whether  acquired  by  purchase  or  by  descent, 
except  in  the  few  localities  where  tenancy  in  coparcenary 
still  exists.3  In  a  tenancy  in  common  the  unity  of  posses- 
sion is  all  that  is  required.  The  estates,  the  titles,  and  the 
times  of  enjoyment  might  all  be  different.  One  tenant 
may  thus  have  a  life  estate  and  another  a  fee,  acquired  by 
different  titles.  There  may  be  a  tenancy  in  common  in  a 
future  estate,  and  their  titles  may  vest  and  be  executed  in 
possession  at  different  periods,  provided  at  some  time  dur- 
ing the  existence  of  both  estates  there  is  a  unity  of  posses- 
sion.4 

1  Co.  Lit.  193  a,  n.  80 ;  1  Washb.  on  Real  Prop.  652.  It  will  of  course  be 
understood  that,  when  speaking  of  the  necessity  of  words  of  limitation,  refer- 
ence is  made  only  to  the  common-law  rule.  Where  the  necessity  of  words  of 
limitation  has  been  removed  by  statute,  in  the  grant  of  one  co-tenant  to  the 
other,  an  ordinary  deed  of  release  will  operate  to  pass  the  estate  in  fee,  with- 
out words  of  limitation.     See  post,  sect.  780. 

2  2  Bla.  Com.  191. 

3  4  Kent's  Com.  367 ;  1  Washb.  on  Real  Prop.  653 ;  Miller  v.  Miller,  16 
Mass.  59;  Sigourney  v.  Eaton,  14  Pick.  414;  Gilman  v.  Morrill,  8  Vt.  74; 
Aldrich  v.  Martin,  4  R.  I.  520;  Evans  v.  Brittain,  3  Serg.  &  R.  135;  Partridge 
v.  Colegate,  3  Har.  &  McH.  339;  Johnson  v.  Harris,  5  Hayw.  113;  Young  v. 
DeBruhl,  11  Rich.  L.  638;  Briscoe  v.  McGee,  2  J.  J.  Marsh.  370;  Challefoux 
v.  Ducharme,  8  Wis.  287.  As  to  what  declaration  is  necessary  to  create  a  joint- 
tenancy,  see  Hersky  v.  Clark,  35  Ark.  17;  37  Am.  Rep.  1. 

4  1  Washb.  on  Real  Prop.  652  ;  2  Bla.  Com.  191 ;  1  Prest.  Est  139.  That 
there  may  be  a  tenancy  in  common  in  a  remainder,  see  Coleman  v.  Lane,  26 
Ga.  515. 

ir,o 


CH.  VIII.]  JOINT    ESTATES.  §    242 

§  241.  Tenancy  In  coparcenary.  —  This  tenancy  is  the 
joint  estate  which,  according  to  common  law,  vested  by 
descent  in  the  heirs  of  an  intestate.  It  partakes  of  the 
characteristics  of  both  joint-tenancies  and  tenancies  in 
common.  Like  joint-tenancies,  in  a  conveyance  by  one  co- 
tenant  to  another  of  his  share,  a  simple  release  was  sufficient 
without  words  of  inheritance,  since  they  were  all  seised  in 
fee  of  the  entire  estate  by  descent.1  And  they  were  like 
tenancies  in  common,  in  that  the  doctrine  of  survivorship 
<lid  not  obtain  in  respect  to  the  respective  shares  of  the 
tenants.  The  heirs  of  a  deceased  tenant  in  coparcenary 
inherited  his  share.2  And  a  coparcenary  may  make  a  devise 
of  his  estate.3  But  in  this  country  the  doctrine  of  copar- 
cenary has  never  prevailed  except  in  Maryland;  in  all  other 
States  joint  estates  by  descent,  are  treated  as  tenancies  in 
common.  The  subject,  therefore,  is  of  very  little  impor- 
tance to  American  students.4 

§  242.  Estates  in  entirety.  —  This  is  an  estate  arising 
in  the  conveyance  to  a  man  and  wife  jointly.  They  are 
not  seised  of  moieties,  but  of  entireties  ;  hence  the  name, 
estate  in  entirety  *     They  resemble  joint-tenancies  in  that 


1  Co.  Lit.  273  b;   1  Prest.  Est.  138;  Gilpin  v.  Hollingsworth,  3  Md.  190. 

2  2  Bla.  Com.  188 ;  1  Washb.  on  Real  Prop.  650. 

3  1  "Washb.  on  Real  Prop.  651 ;  2  Prest.  Abst.  72. 

*  1  Washb.  on  Real  Prop.  651  ;  4  Kent's  Com.  367 ;  Johnson  v.  Harris,  5 
Hayw.  113;  Hoffar  v.  Dement,  5  Gill,  132;  Gilpin  v.  Hollingsworth,  3 
Md.  190. 

5  1  Prest.  Est.  131;  Shaw  v.  Hearsey,  5  Mass  521;  Draper  v.  Jackson,  16 
Mass.  480;  Harding  v.  Springer,  14  Me.  407;  Doe  v.  Howland,  8  Cow.  277; 
Torrey  v.  Torrey,  14  N.  Y.  430;  Wright  v.  Sadler,  20  N.  Y.  320;  Brownson 
v.  Hull,  16  Vt.  309;  Fairchild  v.  Chastelleux,  1  Pa.  St.  176;  Den  v.  Branson, 
5  Ired.  426;  Babbit  v.  Scroggin,  1  Duv.  272;  Paul  v.  Campbell,  7  Yerg. 
319;  Davis  v.  Clark,  26  Lid.  424;  Gibson  v.  Zimmerman,  12  Mo.  385;  Ket- 
chum  v.  Wadsworth,  5  Wis.  95 ;  Lux  v.  Hoff,  47  111.  425.  In  those  States 
where  statutes  have  been  passed,  giving  to  married  women,  in  respect  to  their 
property,  the  rights  of  femes  sole,  it  has  become  a  question  of  great  doubt, 
whether  tenancy  in  entirety  has  been  abolished  inferentially  bv  the  statute. 

ii  161 


§  243  JOINT  ESTATES.  [PART  I. 

they  have  the  quality  of  survivorship  ;  the  heirs  of  the  sur- 
vivor would  take  to  the  exclusion  of  the  heirs  of  the  first 
deceased.1  But,  unlike  joint-tenancies,  the  right  of  sur- 
vivorship cannot  be  destroyed  by  the  action  of  either  party. 
There  can,  therefore,  be  no  partition  of  the  estate.2  During 
coverture  the  husband  has  the  entire  control  of  the  estate, 
may  convey  it  away,  and  it  is  liable  to  be  sold  under  execu- 
tion for  his  debts.  If  the  husband  survives  the  wife,  this 
conveyance  of  it  to  a  stranger  will  be  as  absolute,  as  if  the 
estate  had  been  one  in  severalty.3  But  if  the  wife  survives 
the  husband,  she  acquires,  by  the  right  of  survivorship,  the 
entire  interest  in  the  land,  and  is  entitled  to  her  proper 
action  for  the  recovery  of  the  possession.4  The  Statute  of 
Limitations  cannot  run  against  her  right  of  survivorship 
during  the  disability  of  coverture.5 

§  243.  Estate  in  entirety  in  a  joint-tenancy,  or  ten- 
ancy in  common.  — As  a  consequence  of  the  doctrine  ex- 
plained in  the  foregoing  paragraph,  if  husband  and  wife, 
as  such,  are  made  joint-tenants  or  tenants  in  common  with 

In  the  following  cases,  it  has  been  held  that  the  statute  has  had  no  effect  upon 
the  estates  in  entirety  and  that  a  conveyance  to  man  and  wife  makes  them 
tenants  in  entirety  now,  as  well  as  before  the  statute.  Marburg  v.  Cole, 
49  Md.  402 ;  33  Am.  Rep.  266 ;  Hulett  v.  Inlow,  57  Ind.  412 ;  26  Am.  Rep. 
64;  Hemingway  v.  Scales,  42  Miss.  1;  2  Am.  Rep.  586;  McCurdy  v.  Can- 
ning, 64  Pa.  St.  39;  Diver  v.  Diver,  56  Pa.  St.  106;  Bennett  v.  Child,  19  "Wis. 
365 ;  Fisher  v.  Provin,  25  Mich.  347 ;  Garner  v.  Jones,  52  Mo.  68 ;  Robinson 
v.  Eagle,  29  Ark.  202 ;  Goelett  v.  Gori,  31  Barb.  314.  But  a  contrary  conclu- 
sion is  reached  by  the  courts  in  the  cases  cited  post.  Cooper  v.  Cooper,  76 
111.  57;  Hoffman  v.  Steigers,  28  Iowa,  302;  Clark  v.  Clark,  56  N.  H.  105; 
Meeker  v.  Wright,  75  N.  Y.  262,  overruling  the  prior  Supreme  Court 
decisions. 

1  1  Washb.  on  Real  Prop.  672,  673 ;  1  Prest.  Est.  132. 

*  1  Washb.  on  Real  Prop.  673;  Bennett  v.  Child,  19  Wis.  364. 

s  1  Prest.  Est.  135;  Barber  v.  Harris,  15  Wend.  615;  Needham  v.  Branson, 
5  Ired.  426 ;  Ames  v.  Norman,  4  Sneed,  683 ;  Tane  v.  Campbell,  7  Yerg.  319 ; 
Bennett  v.  Child,  19  Wis.  364. 

4  Pierce  v.  Chase,  108  Mass.  258 ;  French  v.  Mehan,  56  Pa.  St  286 ;  Mc- 
Curdy v.  Canning,  64  Pa.  St.  39. 

6  1  Washb.  on  Real  Prop.  673 ;  Co.  Lit.  326  a. 
162 


CH.  VIII.]  JOINT    ESTATES.  §    245 

others,  they  will  be  considered  as  one  co-tenant,  and  will 
take  but  one  share  between  them ,  equal  to  the  shares  of  the 
others.  Thus  if  A.  and  B.,  husband  and  wife,  are  made 
joint-tenants  with  C,  A.  and  B.  will  take  a  one-half  inter- 
est, while  C.  will  have  the  other  half.  And  the  death  of 
the  husband  or  wife  would  have  no  effect  on  C.'s  share. 
On  the  other  hand,  if  C.  died,  A.  and  B.  would  take  the 
whole  estate  in  entirety.1 

§    244.-  Tenancy    in    common    between    husband    and 

wife.  —  Although  the  estate  in  entirety  has  met  with  gen- 
eral recognition  in  this  country,  yet  in  a  number  of  States 
the  estate  does  not  exist,  and  a  joint  estate  held  by  husband 
and  wife  is  either  treated  as  a  tenancy  in  common,  as  in 
Ohio  and  Virginia,  or  as  a  joint-tenancy,  as  in  Connecti- 
cut.2 And  furthermore,  if  at  any  time  a  joint-tenancy  or 
tenancy  in  common  is  desired  to  be  created  between  man 
and  wife,  a  joint  estate  will  be  treated  as  such,  if  that  inten- 
tion is  clearly  expressed  in  the  deed  or  will.3 

§  245.  Estates  in  partnership.  —  When  a  joint  estate  is 
vested  in  the  members  of  a  partnership,  purchased  with 
partnership  funds  and  for  partnership  purposes,  it  is  called 
an  estate  in  partnership.  The  estate  is  treated  in  equity  as 
personal  property,  and  made  liable  to  the  satisfaction  of  part- 
nership's debts,  in  preference  to  the  claims  of  private  credit- 
ors or  the  widows  and  heirs  of  one  of  the  partners.  Real 
estate  held  by  a  partnership  is  subject  to  the  partnership  debts, 

1  1  Washb.  on  Real  Prop.  674 ;  Williams  on  Real  Prop.  225 ;  1  Prest.  Est. 
132 ;  Barber  v.  Harris,  15  Wend.  615 ;  Johnson  v.  Hart,  6  Watts  &  S.  319 ; 
Gordon  v.  Whieldon,  11  Beav.  170. 

1  See  1  Washb.  on  Real.  Prop.  674,  675;  Whittlesey  v.  Fuller,  11  Conn. 
337 ;  Sergeant  v.  Steinberger,  2  Ohio,  305 ;  Wilson  v.  Fleming,  13  Ohio,  68. 

3  1  Washb.  on  Real  Prop.  674 ;  McDermott  v.  French,  15  N.  J.  Eq.  81.  In 
Kentucky  and  Iowa,  a  conveyance  to  husband  and  wife  gives  them  a  tenancy 
in  common,  unless  the  estate  is  expressly  declared  to  be  a  tenancy  in  entirety. 
Rogers  v.  Grider,  1  Dana,  242 ;  Hoffman  v.  Stigers,  28  Iowa,  302. 

163 


§    246  JOINT  ESTATES.  [PART   I. 

and  until  they  are  satisfied,  no  other  claim  can  be  made 
upon  the  share  of  any  one  of  the  partners.1  And  if  one 
partner  has  paid  more  than  his  share  of  the  debts,  he  has 
also  a  lien  upon  the  real  estate  to  protect  his  right  of  con- 
tribution for  such  over-payment.2  Real  estate,  purchased 
by  a  firm,  will  have  in  equity  all  the  characteristics  of  an 
estate  in  copartnership,  even  though  the  legal  title  be  taken 
in  the  name  of  one  partner.  He  will  hold  the  legal  title  in 
trust  for  the  partnership.  Of  course,  if  the  partner  hold- 
ing the  legal  title  disposes  of  it  to  a  purchaser  for  value 
without  notice  of  the  trust,  the  purchaser  will  take  to  the 
exclusion  of  the  partnership  claims.8 

§  246.  Several  interests  of  partners. — When,  however, 
the  partnership  debts  have  all  been  paid,  the  partners  are 
tenants  in  common  of  the  partnership  lands.  Their  widows 
have  dower,  and  their  heirs  are  entitled  to  it  upon  the  de- 
cease of  the  partners.  It  is  also  subject  to  partition.4  In 
this  country,  at  least,  if  the  real  estate  had  to  be  sold  to 

1  Cox  v.  McBurney,  2  Sandf.  561  ;  Delmonico  v.  Guillaume,  2  Sandf.  Ch. 
366;  Deming  v.  Colt,  3  Sandf.  284;  Lane  v.  Tyler,  49  Me.  252;  Goodwin  v. 
Richardson,  11  Mass.  469;  Galbraith  v.  Gedge,  16  B.  Mon.  631;  Howard  v. 
Priest,  5  Mete.  682 ;  Lang  v.  Waring,  25  Ala.  625 ;  Marvin  v.  Trumbull,  Wright, 
386;  Lancaster  Bk.  w.Myley,  15  Pa.  St.  544;  Coder  v.  Huling,  27  Pa.  St.  84; 
Piatt  w.  Oliver,  3  McLean,  27;  Black  v.  Black,  15  Ga.  445;  Arnold  v.  Wain- 
wright,  6  Minn.  370;  Hunter  v.  Martin,  2.  Rich.  L.  541;  1  Pars,  on   Con.  149. 

3  Buffum  v.  Buffum,  49  Me.  108 ;  Burnside  v.  Merrick,  4  Mete.  537 ;  How- 
ard v.  Priest,  6  Mete.  685 ;  Smith  v.  Jackson,  2  Edw.  Ch.  28 ;  Loubat  v. 
Nourse,  6  Fla.  350. 

3  Smith  ».  Allen,  5  Allen,  456;  Moreau  v.  Safferans,  3  Sneed,  595;  1  Pars, 
on  Con.  153. 

*  Lane  v.  Tyler,  49  Me.  252;  Goodwin  v.  Richardson,  11  Mass.  469;  How- 
ard v.  Priest,  6  Mete.  582  ;  Whaling  Co.  v.  Borden,  10  Cush.  458 ;  Tillinghast 
v.  Champlin,  4  R.  I. 173;  Olcott  v.  Wing,  4  McLean,  15;  Deloney  v.  Hutche- 
son,  2  Rand.  183;  Loubat  v.  Nourse,  6  Fla.  363;  Ludlow  v.  Cooper,  4  Ohio 
St.  1;  Dilworth  v.  Mayfield,  36  Miss.  40;  Buchan  v.  Sumner,  2  Barb.  Ch. 
163;  Buckley  v.  Buckley,  11  Barb.  43;  Piper  v.  Smith,  1  Head,  93;  Patter- 
son v.  Blake,  12  Ind.  436.  Where  there  are  debts  unsatisfied,  equity  regards 
the  real  estate  as  personalty,  so  far  as  to  enable  the  surviving  partner  to  di»- 

164 


OH.  VIII.]  JOINT   ESTATES.  §    246 

liquidate  the  partnership  debts,  any  surplus  that  might  be 
found  undisposed  of  would  be  treated  as  real  property,  and 
go  to  the  widow  and  heirs  of  a  deceased  partner.1 

pose  of  it  for  the  satisfaction  of  the  partnership  debts,  and  a  court  of  equity 
will  compel  the  widow  and  heirs  of  the  deceased  partner  to  execute  the  deed? 
of  conveyance.     Delmonico  v.  Guillaume,  2  Sandf.  Ch.  366  ;  Boyce  v.  Coster, 

4  Strobh.  Eq.  25;  Winslow  v.   Chiffelle,  Har.  Eq.  25;  Matlock  v.  Matlock 

5  Ind.  403 ;  Boyers  v.  Elliott,  7  Humph.  204 ;  Arnold  v.  Wainwright,  6  Minn 
358. 

1  Offut  v.  Scott,  47  Ala.  105 ;  Foster's  Appeal,  74  Pa.  St.  398 ;  22  Am 
Law  Keg.  300,  notes  307-310.  See  also,  generally,  Shearer  v.  Shearer,  9& 
Mass.  107;  Jones'  Appeal,  70  Pa.  St.  169;  Bopp  v.  Fox,  63  111.  540;  1  Pars, 
on  Con.  150.  In  England,  the  interest  of  the  partner  in  partnership  real  estate 
is  looked  upon  as  personalty,  and  therefore,  the  surplus  after  satisfaction  of 
the  partnership  debts,  goes  to  the  personal  representatives,  instead  of  to  the 
heirs.  Darby  v.  Darby,  3  Drewry,  495 ;  1  Pars,  on  Con.  149.  And  see  Rice  v. 
Barnard,  20  Vt.  479;  Lang  v.  Waring,  17  Ala.  145. 

165 


SECTION  II. 

INCIDENTS    COMMON   TO   ALL  JOINT   ESTATES. 

Section  251.  Disseisin  by  one  co-tenant. 

252.  Adverse  title  acquired  by  one  co-tenant. 

253.  Alienation  of  joint  estates. 

254.  Waste  by  co-tenants. 

255.  Liability  of  one  co-tenant  for  rents  and  profits. 

§  251.  Disseisin  by  one  co-tenant.  —  As  the  possession 
of  co-tenants  is  common  to  all,  a  tenure  exists  between  them 
in  respect  thereto,  so  that  if  one  co-tenant  is  in  possession, 
his  possession  is  generally  held  to  be  for  the  benefit  of  all ; 
the  sole  possession  by  one  does  not  constitute  in  itself  a 
disseisin  of  the  other  co-tenants,  notwithstanding  it  con- 
tinues for  the  statutory  period  of  limitation.1  To  create  a 
title  by  adverse  possession  in  one  co-tenant,  he  must  not  only 
have  exclusive  possession,  but  he  must  also  deny  the  right 
of  the  others  in  the  estate,  and  maintain  such  denial  lono; 
enough  for  those  rights  to  be  barred  by  the  Statute  of 
Limitations  ;  and  this  denial  must  expressly,  or  by  necessary 
implication,  be  made  known  to  the  others.2  Among  the 
acts  which   produce  such  an  ouster  of  the  co-tenants,  as  to 

JMcClung  v.  Ross,  5  Wheat.  116;  Clymer  v.  Dawkins,  3  How.  674;  Col- 
burn  v.  Mason,  25  Me.  434;  Barnard  v.  Pope,  14  Mass.  434;  Brown  v.  Wood, 
17  Mass.  68;  Catlin  v.  Kidder,  7  Vt.  12;  Thomas  v.  Hatch,  3  Sumn.  170; 
Campbell  v.  Campbell,  13  N.  H.  483;  German  v.  Machin,  6  Paige  Ch.  288; 
Clowes  v.  Hawley,  12  Johns.  484 ;  Lloyd  v.  Gordon,  2  Har.  &  McH.  254 ; 
Martin  v.  Quattlebaum,  3  McCord,  205;  Prage  v.  Chinn,  4  Dana,  50;  Brown 
v.  Hogle,  30111.  119;  Story  v.  Saunders,  8  Humph.  663. 

2  Doe  v.  Bird,  11  East,  49;  Brackett  v.  Norcross,  1  Me.  89;  Harpending  v. 
Dutch  Church,  16  Pet.  455 ;  Willison  v.  Watkins,  3  Pet.  52 ;  Munroe  v.  Luke, 
1  Mete.  570;  Presbrey  v.  Presbrey,  13  Allen,  284;  Roberts  v.  Morgan,  30  Vt. 
319;  Jackson  v.  Tibbitts,  9  Cow.  241;  Forward  v.  Doetz,  32  Pa.  St.  69;  Mer- 
ediths. Andres,  7  lied.  L.  5;  Gray  v.  Givens,  Rile}'  Ch.  41 ;  Abercrombie  v. 
Baldwin,  15  Ala.  763;  Corbin  v.  Cannon,  31  Miss.  570;  Hoffstetter  v.  Blattner, 
8  Mo.  276  ;  Owen  v.  Morton,  24  Cal.  377. 
1(!6 


CH.  VIII.]  INCIDENTS  COMMON    TO  ALL  JOINT  ESTATES.      §   252 

cause  the  statute  to  run  against  them,  is  the  refusal  to  share  in 
the  profits,  a  conveyance  of  the  entire  estate  to  a  third  party 
who  enters  into  possession,  an  entry  into  possession  of  parts 
of  the  estate  under  an  agreement  that  this  shall  be  a  practical 
partition,  and  many  other  acts  which  are  inconsistent 
with  their  joint-ownership.1  If  the  co-tenant  in  possession 
refuses  to  recognize  the  rights  of  the  others,  by  a  refusal  to 
share  in  the  rents  and  profits,  or  resistance  of  their  right 
to  enter  into  possession,  they  may  have  either  trespass  or 
ejectment  at  their  election  for  such  ouster.2  But  neither 
action  can  be  maintained  against  a  co-tenant,  as  long  as  they 
both  remain  in  possession,  and  the  wrong  complained  of 
does  not  constitute  a  clear  case  of  eviction  or  destruction  of 
some  part  of  the  common  property.3  But  there  may  be 
an  ouster  from  one  part  of  the  land,  while  the  tenant  so 
evicted  remains  in  possession  of  another  part,  and  trespass 
would  lie  for  such  partial  eviction.4 

§   252.  Adverse   title  acquired  by  one  co-tenant.  —  So 

intimate  is  the  relation  of  co-tenants  that  one  cannot  acquire 
by  purchase  an  adverse  and  superior  title,  and  set  it  up  in 
opposition  to  his  co-tenants,  unless  they  refuse  to  contribute 

1  Thomas  v.  Pickering,  13  Me.  837;  Bigelow  v.  Jones,  10  Pick.  160;  Hig- 
bee  v.  Rice,  5  Mass.  344;  Jackson  v.  Whitbeck,  6  Cow.  632;  Bogardus  v. 
Trinity  Church,  4  Paige,  178;  Rider  v.  March,  46  Pa.  St.  380;  Cullen  v. 
Motzer,  13  Serg.  &  R.  356 ;  Frederick  v.  Gray,  10  Serg.  &  R.  182 ;  Great 
Falls  Co.  v.  Worster,  15  N.  H.  412;  Jones  v.  Weathersbee,  4  Strobh.  60; 
Gill  v.  Fauntleroy,  8  B.  Mon.  177 ;  Weisinger  v.  Murphy,  2  Head,  674 ;  Mil- 
ler v.  Miller,  60  Pa.  St.  10;  Hinkley  v.  Green,  52  111.  230. 

2  Keay  v.  Goodwin,  16  Mass.  1 ;  Bennett  v.  Clemence,  6  Allen,  18 ;  Erwin 
v.  Olmstead,  7  Cow.  229;  King  v.  Phillips,  1  Lans.  421 ;  Austin  v.  Rutland, 
etc.,  R.  R,  45  Vt.  215;  McGill  v.  Ash,  7  Pa.  St.  397;  McPherson  v.  Seguine, 
3  Dev.  153 ;  Lawton  v.  Adams,  29  Ga.  273 ;  Jones  v.  Chiles,  8  Dana,  163. 

3  Jewett  v.  Whitney,  43  Me.  242;  Silloway  v.  Brown,  12  Allen,  37;  Erwin 
v.  Olmstead,  7  Cow.  229;  Bennet  v.  Bullock,  35  Pa.  St.  364;  Filbert  v.  Hoff, 
42  Pa.  St.  97. 

4  Murray  v.  Hall,  7  C.  B.  441 ;  Bennett  v.  Clemence,  6  Allen,  10 ;  Carpen- 
tier  v.  Webster,  27  Cal.  624. 

167 


§    253  JOINT   ESTATES.  [PART   T. 

their  share  of  the  expense  of  procuring  the  paramount  title. 
The  title  is  held  to  be  acquired  by  one  for  the  benefit  of 
all.1 

§  253.  Alienation  of  joint  estates.  —  The  co-tenants  of 
all  kinds  of  joint  estates,  except  tenants  in  entirety,  may 
alien  their  shares  in  the  estates,  without  the  participation  or 
consent  of  the  other  tenants.  Their  deeds  convey  whatever 
interest  they  possess.2  But  a  tenant  cannot ,  without  the  con- 
sent of  his  co-tenants,  give  an  absolute  title  to  any  part  of 
the  estate,  described  by  metes  and  bounds,  equal  in  value 
to  his  undivided  share  in  the  joint  estate,  which  will  be 
binding  upon  his  co-tenants.3  And  some  of  the  courts 
deny  the  efficacy  of  such  a  conveyance  for  any  purpose, 
without  the  consent  of  the  co-tenants.  It  conveys  to  the 
grantee  no  interest  whatsoever  in  the  general  estate.4  But 
the  more  rational  and  equitable  theory  would  seem  to  be, 

1  Braintree  v.  Battles,  6  Vt.  395;  Van  Home  v.  Fonda,  5  Johns.  Ch.  407; 
Wells  v.  Chapman,  4  Sandf.  Ch.  312;  Lloyd  v.  Lynch,  28  Pa.  St.  419;  Hussey 
v.  Blood,  29  Pa.  St.  319 ;  Flagg  v.  Maun,  2  Sumn.  490 ;  Venable  v.  Beauchamp, 
3  Dana,  321 ;  Picot  v.  Page,  26  Mo.  398 ;  Morgan  v.  Herrick,  21  111.  481 ; 
Butler  v.  Porter,  13  Mich.  292;  Rothwell  v.  Dewees,  2  Black,  C13; 
Weare  v.  Van  Meter,  42  Iowa,  128;  20  Am.  Rep.  616;  Fallon  v.  Chidester,  46 
Iowa,  588:  26  Am.  Rep.  164.  It  is  a  fraud  for  one  tenant  to  let  the  taxes 
remain  unpaid,  and  then  buy  in  the  tax-title,  for  the  purpose  of  acquiring  title 
to  the  whole  premises.     Brown  v.  Hogle,  30  111.  119. 

2Peabody  v.  Minot,  24  Pick.  329;  Butler  v.  Roys,  25  Mich.  53;  12  Am. 
Rep.  218;  Brown  v.  Wellington,  106  Mass.  318;  8  Am.  Rep.  300;  Rector  v. 
Waugh,  17  Mo.  13;  York  v.  Stone,  1  Salk.  158;  Simpson  v.  Ammons,  1  Binn. 
175;  Green  v.  Arnold,  11  R.  I.  364;  23  Am.  Rep.  330. 

3  Brown  v.  Bailey,  1  Mete.  254;  Nichols  v.  Smith,  22  Pick.  316;  Peabody 
v.  Minot,  24  Pick.  329 ;  Duncan  v.  Sylvester,  24  Me.  482  ;  Staniford  v.  Fuller- 
ton,  18  Me.  229 ;  Whilton  v.  Whilton,  38  N.  H.  127 ;  Smith  v.  Knight,  29  N. 
H.  9 ;  Griswold  v.  Johnson,  5  Conn.  363 ;  Prim  v.  Walker,  38  Mo.  97 ;  Jew- 
ett's  Lessee  v.  Stockton,  3  Yerg.  492 ;  Good  v.  Coombs,  28  Texas,  61 ;  McKey 
v.Welch,  22  Texas,  390;  Challefoux  v.  Ducharme,  4  Wis.  554. 

*  Soutter  v.  Porter,  17  Me.  405;  Phillips  v.  Tudor,  10  Gray,  82;  Great 
Falls  Co.  v.  Worster,  15  N.  H.  412;  Johnson  v.  Stevens,  7  Cush.  431;  Crip- 
per  v.  Morse,  49  N.  Y.  67 ;  3  Washb.  on  Real  Prop.  261;  Cox  v.  McMullin, 
14  Gratt.  84.     But  where  the  joint  estate  consists  of  several  distinct  parcels, 

168 


CH.  VIII.]    INCIDENTS  COMMON  TO  ALL  JOINT  ESTATES.     §   254 

that  such  a  conveyance  would  pass  whatever  was  the  grantor's 
proportionate  share  in  that  part  of  the  joint  estate,  and 
make  the  grantee  a  co-tenant  in  the  general  estate  to  the 
extent  of  the  interest  so  conveyed.  Thus,  if  one  of  two 
equal  co-tenants  conveys  his  share  in  one-half  of  the  joint 
estate,  described  by  metes  and  bounds,  his  grantee  would 
become  a  co-tenant  with  the  others  in  an  undivided  one- 
fourth  of  the  whole  estate.1  For  it  is  undisputed  that  if 
the  owner  of  land  grants  a  specified  number  of  acres  in  the 
estate  without  describing  them,  his  grantee  will  become  a 
tenant  in  common  with  him,  his  share  being  covered  by  the 
ratio  which  his  number  of  acres  bore  to  the  whole  estate.2 
The  description  by  metes  and  bounds  may  be  treated  as  sur- 
plusage, except  for  the  purpose  of  determining  the  gran- 
tee's aliquot  share  in  the  entire  joint  estate. 

§  254.  Waste  by  co-tenants. — If  one  co-tenant  misuse 
or  abuse  the  property,  while  in  possession,  he  is  liable  to 
the  others  for  waste.  But  as  a  general  rule  he  is  only  lia- 
ble, wherothe  waste  complained  of  results  in  an  actual  in- 
jury to  the  property.  He  must  do  something  more  than 
exercise  the  rights  of  ownership.  He  may  therefore  be 
held  liable  for  negligence  in  keeping  up  the  necessary  re- 
there  is  no  objection  to  the  conveyance  of  one  co-tenant's  interest  in  one  par- 
cel. Butler  v.  Boys,  25  Mich.  68 ;  12  Am.  Bep.  218 ;  Peabody  v.  Minot,  24 
Pick.  329. 

1  Eeinicker  v.  Smith,  2  Har.  &  J.  421;  White  v.  Sayre,  2  Ohio,  302; 
Treon's  Lessee  v.  Emerick,  6  Ohio,  391 ;  Campan  v.  Godfrey,  18  Mich.  39. 
See  Newton  v.  Home  and  Drury,  29  Wis.  531;  9  Am.  Bep.  616;  Boylston 
Ins.  Co.  v.  Davis,  68  N.  C.  17 ;  12  Am.  Bep.  624;  Holcomb  v.  Coryell,  11  N. 
J.  Eq.  548;  Jewett  v.  Foster,  14  Gray,  496;  Gibbs  v.  Swift,  12  Cush.  393; 
Preston  v.  Bobinson.^24  Vt.  583 ;  Jackson  v.  Livingston,  7  Wend.  136 ;  Wol- 
ford  v.  McKinna,  23  Texas,  45 ;  Schenck  v.  Evoy,  24  Cal.  110.  Contra,  Shackle- 
ford  v.  Bailey,  35  111.  391. 

2  Jewett  v.  Foster,  14  Gray,  496 ;  Gibbs  v.  Swift,  12  Cush.  393  ;  Preston  v. 
Bobinson,  24  Vt.  593;  Jackson  v.  Livingston,  7  Wend.  136;  Wofford  v.  Mc- 
Kinna, 23  Texas,  45;  Schenck  v.  Evoy,  24  Cal.  110.  Contra,  Shackleford  v. 
Bailey,  36  111.  391. 

169 


$    255  JOINT   ESTATES.  [PART    I. 

pairs,  or  doing  any  affirmative  act  which  injures  the  inher- 
itance, such  as  flowing  land,  pulling  down  houses,  and  the 
like.1  And  if  a  co-tenant  threatens  wilful  and  malicious 
destruction  of  the  property,  he  may  be  restrained  by  in- 
junction.3 But  the  tenant  is  under  no  obligation  to  make 
improvements,  and  if  one  co-tenant  enters  upon  the  land 
and  makes  improvements,  he  cannot  hold  the  others  liable 
for  their  share,  nor  can  he  claim  the  exclusive  right  to  these 
improvements.  But  if  the  repairs  are  necessary  to  prevent 
the  property  from  going  to  decay,  he  may  either  compel 
the  others  to  join  him  in  making  the  repairs,  or,  if  he  has 
notified  them  that  such  repairs  are  necessary,  bring  an  ac- 
tion against  them  for  their  share  of  the  expenses.3 

§  255.  Liability  of  one  co-tenant  for  rents  and  profits.  — 

If  one  tenant  cuts  timber  upon  the  land,  and  sells  it,  the 
co-tenants  are  entitled  to  their  share  of  the  money  so  re- 
ceived. And  so  also  would  he  be  liable  to  account  for 
rents,  received  by  him  from  the  tenant  of  the  land,  over  and 
above  his  share.4     But  in  order  that  a  co-tenant  may  be  held 

1  Hines  v.  Robinson,  57  Me.  328 ;  Hutchinson  v.  Chase,  39  Me.  508 ;  Hastings 
W.Hastings,  110  Mass.  285;  Chesley  v.  Thompson,  3  N.H.  9;  Odiorne  v.  Lyford, 

9  N.  H.  502 ;  McLellan  v.  Jenness,  43  Vt.  183 ;  5  Am.  Rep.  270 ;  Hayden  v. 
Merrill,  44  Vt.  336 ;  8  Am.  Rep.  372 ;  El  well  v.  Burnside,  44  Barb.  454  ;  An- 
derson v.  Meredith,  3  Dev.  &  B.  199;  Farr  v.  Smith,  9  Wend.  338;  Hyde  v. 
Stone,  9  Cow.  230 ;  Harmon  v.  Gartman,  Harper,  430 ;  Shields  v.  Stark,  14  Ga. 
429 ;  Fightmaster  v.  Beasley,  7  J.  J.  Marsh.  410. 

2  1  Washb.  on  Real  Prop.  661 ;  Twort  v.  Twort,  16  Ves.  128.  See  Martin 
v.  Knowlye,  8  T.  R.  146 ;  Wilbraham  v.  Snow,  2  Saund.  47. 

»  Doane  v.  Badger,  12  Mass.  65 ;  Coffin  v.  Heath,  6  Mete.  79 ;  Calvert  v.  Aid- 
rich,  99  Mass.  78;    Stevens  v.  Thompson,  17  N.  H.  109;  Cheesebro  v.  Green, 

10  Conn.  818 ;  Mumford  v.  Brown,  6  Cow.  475 ;  Scott  v.  Guernsey,  48  N.  Y. 
106 ;  Taylor  v.  Baldwin,  10  Barb.  582 ;  Crest  ».  Jacks,  3  "Watts,  239 ;  Dech's 
Appeal,  57  Pa.  St.  472 ;  Israel  v.  Israel,  30  Md.  128 ;  Ottumwa  Lodge  v.  Lewis, 
34  Iowa,  67. 

4  Miller  v.  Miller,  7  Pick.  133 ;  Peck  v.  Carpenter,  7  Gray,  283 ;  Dickin- 
son v.  Williams,  11  Cusk.  258;  Gowen  v.  Shaw,  40  Me.  56;  Webster  v.  Calef, 
47  N.  H.  289;  Hayden  v.  Merrill,  44  Vt.  336;  8  Am.  Rep.  372;  Izard  i>.  Bo- 
dine,  11  N.  J.  Eq.  403 ;  Israel  v.  Israel,  30  Md.  126 ;  Huff  v.  McDonald,  22  Ga. 
170 


CH.  VIII.]  INCIDENTS  COMMON  TO  ALL  JOINT  ESTATES.      §    255 

personally  liable  for  rent  through  his  own  use  and  occupa- 
tion of  the  land,  a  special  agreement  to  that  effect  must  be 
shown.  An  occupancy  by  one  co-tenant  without  the  inter- 
ference of  the  others  is  not  sufficient.  He  is  merely  exer- 
cising his  right  of  ownership.1  And  when  a  co-tenant  is 
liable  for  use  and  occupation,  the  claim  is  personal,  and  is 
not  assigned  with  the  grant  of  the  claimant's  estate.2 

131 ;  Pico  v.  Columbet,  12  Cal.  414.  But  one  co-tenant  may  cut  the  grass, 
growing  on  the  common  estate,  sell  it,  and  apply  the  profits  to  his  own  use 
Brown  v.  Wellington,  106  Mass.  318;  8  Am.  Rep.  CD.  See  Kcan  v.  Connely 
25  Minn.  222 ;  33  Am.  Rep.  458. 

1  Sargent  v.  Parsons,  12  Mass.  149 ;  Calhoun  v.  Curtis,  4  Mete.  413 ;  Scots  v. 
Guernsey,  60  Barb.  163;  Kline  v.  Jacobs,  68  Pa.  St.  57;  Keisel  v.  Earnest,  21 
Pa.  St.  90;  Israel  v.  Israel,  30  Md.  120;  McMahon  v.  Burchell,  2  Phil.  Eq. 
134 ;  Lyles  v.  Lyles,  1  Hill  Ch.  85 ;  Crow  v.  Mark,  52  111.  332 ;  Everts  v.  Beach, 
31  Mich.  136;  18  Am.  Rep.  169;  Pico  v.  Columbet,  12  Cal.  414.  But  see  con- 
tra, Holt  v.  Robertson,  McMull.  475 ;  Thompson  v.  Bostick,  lb.  75 ;  Hay- 
den  v.  Merrill,  44  Vt.  430 ;  8  Am.  Rep.  372.  And  likewise,  if  one  co-tenant 
plants  a  crop  upon  the  common  estate,  it  belongs  to  him  exclusively,  and  his 
co-tenant  would  be  liable  as  a  trespasser,  if  he  appropriated  it  to  himself. 
Calhoun  v.  Curtis,  4  Mete.  413 ;  Bird  v.  Bird,  15  Fla.  424 ;  21  Am.  Rep.  296 
See  Kean  v.  Connely,  25  Minn.  222;  33  Am.  Rep.  458. 

8  1  Washb.  on  Real  Prop.  663 ;  Hannan  v.  Osborn,  44  Paige  Ch.  33. 

171 


section  m. 


PARTITION. 


Section  259.  Definition  of  partition. 

260.  Voluntary  partition. 

261.  Involuntary  or  compulsory  partition. 

262.  Who  can  maintain  action  for  partition. 

263.  Partial  partition. 

264.  Manner  of  allotment. 

265.  Effect  of  partition. 

§  259.  Definition  of  partition.  —  Partition  is  the  act  of 
dividing  up  the  joint  estates  into  estates  in  severalty  among 
the  co-tenants,  in  the  proportion  of  their  undivided  shares 
in  the  joint  estate.  This  can  be  done  with  any  joint  estate 
in  possession,  except  estates  in  entirety.1 

§  260.  "Voluntary  partition.  —  As  co-tenants  of  joint  es- 
tates generally  have  the  unrestricted  power  of  aliening  their 
shares  in  the  common  estate,  it  is  possible  for  them  to  make 
partition  of  the  estate  by  mutual  conveyances  to  each  other 
of  their  share  in  different  parts  of  the  estate;  that  is,  by 
dividing  up  the  estate  into  several  parcels,  and  making 
conveyance  of  one  parcel  to  each,  all  joining  in  the  deed 
or  deeds,  a  partition  can  be  made.  But  in  order  to  be 
effectual,  the   partition   must   be  done    by  mutual  deeds. 

1  Bennett  v.  Child,  19  Wis.  364;  1  Washb.  on  Keal  Prop.  673.  Where 
there  is  an  express  condition  against  partition,  partition  cannot  be  had,  for  an 
attempt  at  it  would  result  in  a  forfeiture  of  the  estate.  Hunt  v.  Wright,  47 
N.  H.  399.  See  Fisher  v.  Demerson,  3  Mete.  546.  But  the  condition  must  be 
express,  and  clearly  manifest  an  intention  to  prevent  partition.  Spaulding  v. 
Woodward,  53  N.  H.  573 ;  16  Am.  Rep.  392.  But  apart  from  these  exceptions, 
the  general  rule  is,  that  partition  may  be  had  in  all  joint-estates,  joint-tenan- 
cies, as  well  as  tenancies  in  common.  Mitchell  v.  Ptarbuck,  10  Mass.  6; 
Potter  v.  Wheeler,  13  Mass.  504;  Coleman  v.  Coleman,  19  Pa.  St.  100;  Holmes 
v.  Holmes,  2  Jones  Eq.  334;  Witherspoon  v.  Dunlap,  Harper,  390;  Higgin- 
bottom  v.  Short,  25  Miss.  160. 
172 


CH.  VIII.]  PARTITION.  §    261 

Parol  partition  would  be  void  under  the  Statute  of  Frauds.1 
Tenants  in  coparcenary  may  make  an  effectual  partition  by 
parol,  if  it  is  followed  by  actual  possession  in  severalty,  at 
least  in  those  States  where  tenancy  in  coparcenary  is 
recognized.2  But  although  a  parol  partition  will  not  be 
effectual  and  binding  upon  the  parties,  yet  if  it  is  followed 
by  actual  possession,  such  partition  will  give  to  the  parties 
the  rights  and  incidents  of  exclusive  possession,  as  long  as 
the  exclusive  possession  is  permitted  to  continue.  And 
this  exclusive  possession,  if  continued  for  a  sufficient  length 
of  time,  will  ripen  into  a  title  under  the  Statute  of  Limita- 
tions.3 So,  also,  if  one  of  the  co-tenants,  relying  upon  the 
parol  partition,  enters  into  possession,  and  makes  extensive 
improvements  on  the  part  allotted  to  him,  the  court,  in  a 
subsequent  action  for  partition,  in  the  exercise  of  a  wise 
discretion,  may,  and  probably  would,  simply  confirm  the 
former  parol  partition,  instead  of  making  any  different 
one.4 

§  261.  Involuntary  or  compulsory  partition.  — At  com- 
mon law,  no  suit  for  partition  of  a  joint  estate  could  have 
been  sustained  against  the  will  of  any  one  of  the  co-tenants, 
except  in  the  case  of  an  estate  in  coparcenary,  and  it  was 
not  until  the  reign  of  Henry  VIII.  that  any  legal  action 
was  provided  for  compulsory  partition.     Statutes  were  then 

1  Gardiner  Man.  Co.  v.  Heald,  5  Me.  384 ;  Porter  v.  Hill,  9  Mass.  34 ;  Dow 
v.  Jewell,  18  N.  H.  354 ;  Wood  v.  Fleet,  30  N.  Y.  501 ;  Gratts  v.  Gratts,  4 
Eavvle,  411 ;  Coles  v.  Wooding,  2  Patt.  jr.  &  H.  189 ;  Slice  v.  Derrick,  2  Rich. 
627;  Piatt  v.  Hubbell,  5  Ohio,  243;  Manley  v.  Pettee,  38  111.  128;  Wildey  v. 
Barney's  Lessee,  31  Miss.  644. 

2  1  Washb.  on  Real  Prop.  676. 

3  Keay  v.  Goodwin,  16  Mass.  1;  Jackson  v.  Harder,  4  Johns.  202;  Corbin 
v.  Jackson,  14  Wend.  619;  Gregg  v.  Blackmore,  10  Watts,  192;  Lloyd  v.  Gor- 
don, 2  Har.  &  McH.  254;  Slice  v.  Derrick,  2  Rich.  627;  Drane  v.  Gregory,  3 
B.  Mon.  619;  Piatt  v.  Hubbel,  5  Ohio,  243.  In  Manley  v.  Pettee,  38  111.  128, 
a  parol  partition,  followed  by  occupation,  has  been  held  to  be  effectual  against 
creditors  and  purchasers. 

*  Wood  v.  Fleet,  36  N.  Y.  501. 

173 


§    262  PARTITION.  [PART  I. 

passed  creating  the  common-law  writ  of  partition.'  Similar 
statutes  have  been  passed  in  the  different  States.3  But 
apart  from  the  common-law  statutory  remedies,  the  court 
of  chancery  has,  since  the  reign  of  Elizabeth,  maintained 
jurisdiction  for  partition,  and  this  is  now  the  only  remedy 
in  England,  unless  recent  statutes  have  been  passed;  it 
exists  also  in  most,  if  not  all,  of  the  States.3  The  court 
of  chancery  would,  after  examination  by  the  master,  allot 
particular  parcels  to  each  tenant,  and  make  its  decree 
effectual  by  compelling  the  parties  to  execute  mutual  deeds 
of  conveyance.  In  the  proceedings  at  common  law,  the 
judgment  of  the  court  vested  the  titles  in  severalty  in  each, 
party,  without  the  aid  of  the  mutual  conveyance.4  The 
action  for  partition,  whether  it  be  in  law  or  in  equity,  is  an 
action  in  rem,  and  must  be  brought  in  the  county  and 
State  in  which  the  land  lies.5 

§  262.  Who  can  maintain  action  for  partition.  —  Un- 
der the  statute  31  Henry  VIII.,  only   tenants  of  a  free- 

1  1  Washb.  on  Real  Prop.  651,  676 ;  Williams  on  Real  Prop.  103. 

3  The  statutes  vary  in  detail,  and  cannot  be  given  here.  For  an  excellent 
compendium  of  these  statute?,  see  Mr.  Washburn's  note,  1  WjtsJib.  on  Real 
Prop.  690,  note;  4  Kent's  Com.  364.  See  also,  generally,  in  reference  to  the 
common-law  remedy,  Cook  v.  Allen,  2  Mass.  462;  Champion  v.  Spence,  1 
Root,  147 ;  McKee  v.  Straub,  2  Binn.  1 ;  "Witherspoon  v.  Dunlap,  1  McCord, 
546. 

3  1  Washb.  on  Real  Prop.  677.  678;  Williams  on  Real  Prop.  103;  Story's 
Eq.  Jur.,  sect.  647;  Moore  v.  Moore,  47  N.  Y.  469;  Bailey  v.  Sissan,  1  R.L 
233;  Adams  v.  Ames  Iron  Co.,  24  Conn.  230;  Whitton  v.  Whitton,  36  N.  H. 
326;  Spitts  v.  Wells,  18  Mo.  468;  Greenup  v.  Sewell,  18  111.  53.  But  chan- 
cery did  not  entertain  a  suit  for  partition,  if  there  was  a  dispute  concerning 
the  title.  4  Kent's  Com.  365;  1  Washb.  on  Real  Prop.  678,  679;  McCall'i 
Lessee  v.  Carpenter,  18  How.  (U.  S.)  297;  Hosford  r.  Merriam,  5  Barb.  51  j 
Obert  v.  Obert,  10  N.  J.  Eq.  98 :  Tabler  v.  Wiseman,  2  Ohio  St.  207 ;  Shearer 
p.  Winston,  33  Miss.  149. 

*  1  Washb.  on  Real  Prop.  678;  Story's  Eq.  Jur.,  sects.  652,  654.  But  now 
in  most  of  the  States  the  decree  in  equity  has  the  same  effect  as  a  judgment 
ut  law.     Hassett  r.  RUgley,  49  III.  201  :  Hoffman  r.  Stigers,  28  Iowa,  302. 

5  Bonner,  Petitioner,  4  Mass.  122;  Peibody  v.  Minot,  24  Pick.  333;  Cor- 
withc  v.  Griffmg,  21  Barb.  9;  Brown  v.  McMullen,  1  Nott  vS:  M.  252. 
174 


CH.  VIII.]  PARTITION.  §    262 

hold  estate  of  inheritance  were  empowered  to  compel  a 
partition,  but  by  statute  32  Henry  VIII.,  the  right  was 
extended  to  tenants  for  life  and  for  years,  but  partition 
between  them  would  not  affect  the  rights  of  reversioners; 
and  the  general  rule  now  is,  that  partition  might  be  had 
between  the  co-tenants  of  any  joint  estate,  who  have  the 
seisin  and  the  immediate  right  of  possession.1  Partition, 
therefore,  does  not  lie  between  tenants  who  have  been 
disseised,2  or  who  are  tenants  in  remainder  or  reversion.3 
But  unsettled  claims  or  encumbrances  upon  the  land, 
or  upon  the  share  of  one  or  more  of  the  co-tenants, 
in  the  hands  of  strangers,  —  such  as  a  claim  of  dower, 
or  a  mortgage  of  the  premises,  where  the  mortgagee 
is  not  in  possession,  —  will  not  prevent  the  partition. 
But  in  order  that  the  decree  in  partition  shall  bind  the 
holders  of  these  claims  or  encumbrances,  existing  at  the 
time  that  the  suit  for  partition  is  instituted,  they  must  be 
made  parties,  in  the  absence  of  a  statute  to  the  contrary.4 

1  1  Washb.  on  Real  Prop.  680;  Co.  Lit.  167;  Mussey  v.  Sandborn,  15 
Mass.  152;  Austin  v.  R.  R.,  45  Vt.  215;  Riker  v.  Darkey,  4  Edw.  Ch.  668; 
Brownwell  v.  Brown  well,  19  Wend.  367 ;  Call  v.  Barker,  12  Me.  320 ;  Lambert 
v.  Blumenthal,  26  Mo.  471 ;  Tabler  v.  Wiseman,  2  Ohio  St.  207. 

2  Bonner  v.  Kennebeck  Purchase,  7  Mas3.  475;  Marshall  v.  Crehore,  13 
Mete.  462;  Hunnewell  v.  Taylor,  6  Cush.  472;  Call  v.  Barker,  12  Me.  320; 
Miller  v.  Dennett,  6  N.  H.  109 ;  Brownell  v.  Brownell,  19  Wend.  367 ;  Brad- 
shaw  v.  Callaghan,  8  Johns.  558;  Florence  v.  Hopkins,  46  N.  Y.  184;  Clapp 
v.  Bromagham,  9  Cow.  530;  Stevens  v.  Enders,  1  Green  (N.  J.)  271;  Brock 
v.  Eastman,  28  Vt.  658;  Tabler  v.  Wiseman,  2  Ohio  St.  207 ;  Lambert  v. 
Blumenthal,  26  Mo.  471. 

3  Hodgkinson,  Petitioner,  12  Pick.  374;  Hunnewell  v.  Taylor,  6  Cush.  472; 
Nichols  v.  Nichols,  28  Vt.  228 ;  Adams  v.  Ames  Iron  Co.,  24.  Conn.  230 ; 
Brown  v.  Brown,  8  N.  H.  93;  Ziegler  v.  Grim,  6  Watts,  106;  Tabler  v. 
Wiseman,  2  Ohio  St.  207.  In  New  York  and  Illinois,  there  may  be  a  partition 
of  a  ve»ted  remainder.  Blakely  v.  Colder,  15  N.  Y.  617;  Hilliard  v.  Scoville, 
52  111.  449.  And,  likewise,  no  partition  can  be  had  between  a  living  heir  and 
one  still  unborn,  in  ventre  sa  mere.  Gillespie  v.  Nabors,  59  Ala.  441 ;  31  Am. 
Rep.  20. 

*  Call  v.  Barker,  12  Me.  320;  Mottey  v.  Blake,  12  Mass.  280;  Colton  v. 
Smith,  11  Pick.  311 ;  Taylor  v.  Blake,  109  Mass.  513 ;  Burhaus,  2  Barb.  Ch. 
398 ;  Bradshaw  v.  Callaghan,  8  Johns.  558 ;  Purvis  v.  Wilson,  5  Jones  L.  22  „ 

175 


§    264  PARTITION.  [PART   I. 

If  claimants  upon  the  shares  of  individual  co-tenants  have 
been  properly  brought  before  the  court,  the  decree  in  par- 
tition will  transfer  the  lien  of  the  encumbrance  to  the  part 
allotted  to  the  tenant,  whose  share  in  the  joint  estate  was 
encumbered.1  If  the  interest  in  the  co-tenant's  share  is  ac- 
quired after  the  commencement  of  the  suit,  the  claimant 
takes  the  interest  subject  to  the  decree  in  partition,  and 
need  not  be  made  a  party.2 

§  263.  Partial  partition. — Partition  of  a  part  of  the 
joint  estate  cannot  be  asked  for.  The  entire  estate  must 
be  brought  in  for  partition  ;  but  two  or  more  of  the  co-tenants 
may  ask  for  a  decree  setting  out  their  shares  in  common, 
and  apart  from  the  others.3 

§  264.  Manner  of  allotment. — Commissioners  are 
generally  appointed  by  the  court,  whose  duty  it  is  to 
ascertain  the  best  mode  of  dividing  up  the  estate  among  the 
several  tenants.  And  in  performing  this  duty,  they  are  to 
be  guided  by  the  circumstances  of  each  case.  If  there  are 
several  lots  or  parcels  of  land,  one  parcel  may  be  given  to 
each,  or,  if  it  is  a  single  tract,  it  is  divided  up,  if  possible, 
into  equal  parcels  ;  but  if  in  either  case  an  equal  division  is 
impossible,  the  commissioner  may  direct  the  payment  of  a 
sum  of  money,  called  owelty  of  partition,  in  order  to 
equalize  the  partition.4     A  court  of   equity  may  so    direct 

Harlan  v.  Stout,  22  Ind.  488;  Kilgour  v.  Crawford,  51  111.  249;  Butler  v.  Roys, 
25  Mich.  53 ;  12  Am.  Rep.  218;  De  Uprey  v.  De  Uprey,  27  Cal.  332.  And  if 
there  is  any  owelty  coming  to  the  mortgagor  co-tenant,  it  must  be  paid  to  the 
mortgagees.     Green  v.  Arnold,  1 1  R.  I.  364 ;  23  Am.  Rep.  466. 

1  1  Washb.  on  Real  Prop.  682. 

2  Westervelt  v.  Huff,  2  Sandf.  Ch.  98;  Baird  v.  Corwin,  17  Pa.  St.  462. 

3  1  Washb.  on  Real  Prop.  679,  Duncan  v.  Sylvester,  16  Me.  388;  Bigelow 
v.  Littlefield,  52  Me.  24;  Arms  v.  Lyman,  5  Pick.  210;  Clark  v.  Parker,  106 
Mass.  554;  Colton  v.  Smith,  11  Pick.  511 ;  Ladd  v.  Perley,  18  N.  H.  396. 

*  Hagarv.  Wiswall,  10  Pick.  152;  Story's  Eq.  Jur.  G54;  1  Washb.  on  Real 
Prop.  678;  Green  v.  Arnold,  11  R.  I.  364;  23  Am.  Rep.  466. 
176 


CH.  VIII.]  PARTITION.  §    265 

partition  that  the  tenant,  who  has  made  improvements  upon 
the  land,  may  get  the  benefit  of  them.1  But  if  the  estate 
in  question  is  not  susceptible  of  a  partition  without  de- 
stroying the  value  of  the  property,  as  where  it  is  a  mill,  a 
wharf,  and  the  like,  the  property  will  either  be  ordered  to 
be  sold,  and  the  proceeds  of  sale  divided  among  the  tenants 
according  to  their  equities,  or  the  entire  estate  will  be 
vested  in  one,  who  will  then  be  required  to  pay  to  the  others 
their  shares  in  money.  But  an  actual  partition  is  more 
favored,  and  will  be  ordered,  whenever  practicable.2 

§  2(55.  Effect  of  partition.  —  Partition,  when  com- 
pleted, vests  in  each  tenant  an  estate  in  severalty  in  the  part 
or  parcel  allotted  to  him  by  agreement  of  the  parties,  or  by 
the  decree  of  the  court ;  and  the  parties  cease  to  be  co- 
tenants.  But  if  the  partition  is  made  by  the  decree  of  a 
court,  there  is  a  sufficient  privity  of  estate  remaining  be- 
tween them,  as  to  make  the  loss  by  one  tenant,  of  the  part 
allotted  to  him,  through  the  enforcement  of  a  superior  title, 
a  burden  upon  all.  In  compulsory  partition,  each  tenant 
becomes  a  warrantor  of  the  titles  of  the  others  to  the  extent 
of  his  share.  And  if  one  is  ousted  of  his  share  by  the 
claim  of  a  superior  title,  he  may  enter  upon  the  share 
of  the  others,  and  ask  for  a  new  partition  of  what 
remains    of   the  original  joint  estate.3     But    if   the  parti- 

1  Green  v.  Putnam,  1  Barb.  500 ;  Wood  v.  Fleet,  36  N.  Y.  501 ;  Crafts  v. 
Crafts,  13  Gray,  360;  Robinson  v.  McDonald,  11  Texas,  385;  Deanu.  O'Meara, 
47  111.  122  ;  Thorn  v.  Thorn,  14  Iowa,  55 ;  Borah  v.  Archers,  7  Dana,  177.  But 
see,  contra,  Gourley  v.  Woodbury,  43  Vt.  89. 

2  Miller  v.  Miller,  13  Pick.  237 ;  Adams  v.  Briggs  Iron  Co.,  7  Cush.  361  ; 
King  v.  Reed,  11  Gray,  490;  Wood  v.  Little,  35  Me.  107;  Morrill  v.  Morrill,  5 
N.  H.  134;  Crowell  v.  Woodbury,  52  N.  H.  613  ;  Conantr.  Smith,  1  Aik.  (Vt.) 
67;  Hills  v.  Dey,  14  Wend.  204;  Belknap  v.  Trimble,  3  Paige  Ch.  577;  Roys- 
ton  v.  Royston,  13  G;i.  425 ;  Higginbotton  v.  Short,  25  Miss.  160;  McGillivray 
v.  Evans,  27  Cal.  96. 

3  1  Washb.  on  Real  Prop.  689;  Co.  Lit.  173  b;  Feather  v.  Strohecker,  3 
Pa.  St.  505.     See  Campan  v.  Barnard,  25  Mich.  382. 

12  177 


§    265  PARTITION.  [PART    I. 

tion  is  by  mutual  deeds  of  release,  there  will  be  no 
claim  for  compensation,  unless  the  partition  was 
tainted  with  fraud.1  For  this  reason,  and  perhaps  for 
others,  it  is  impossible  for  one,  who  has  been  a  co-tenant, 
to  acquire,  by  purchase  after  partition,  a  superior  title  to 
the  joint  estate  which  he  may  enforce  against  his  former 
co-tenants.  They  may  claim  the  benefit  of  such  purchase 
by  contributing  their  share  of  the  price  or  consideration, 
in  the  same  manner  as  before  partition ;  and  it  would  seem 
that  this  would  be  the  case,  whether  the  partition  was  vol- 
untary or  involuntary.2 

Weiser  v.  Weiser,  5  "Watts,  279;  Beardslee  v.  Knight,  10  Vt  186.  But 
where  it  is  necesBary  that  all  should  join  in  an  action  on  the  covenant  of  war- 
ranty in  the  conveyance  to  them,  the  one  who  has  lost  his  estate  may  call 
upon  the  others  to  join  him  in  the  action  against  their  common  warrantor. 
Sawyers  v.  Cater,  8  Humph.  256  ;  Dugan  v.  Hollins,  4  Md.  Ch.  139 ;  4  Kent's 
Com.  470.  But  now,  a  tenant  in  common  may  sue  alone  on  the  general  cove- 
nant of  warranty  where  the  breach  affects  him  alone.  Lamb  v.  Danforth,  59 
Me.  322 ;  8  Am.  Rep.  426. 

'  Venable  v.  Beauchamp,  3  Dana,  326 ;  Co.  Lit  174  a ;  1   Washb.  oa  Real 
Prop.  688. 

178 


CHAPTEE    IX. 

ESTATES     UPON      CONDITION     AND      LIMITATION,     AND     CONDI- 
TIONAL   LIMITATIONS. 

Section  271.  Definition  of  an  estate  upon  condition. 

272.  Words  necessary  to  create  an  estate  upon  condition. 

273.  Conditions  precedent  and  subsequent,  further  distinguished. 

274.  Invalid  conditions  —  Impossibility  of  performance. 

275.  Invalid  conditions  —  Because  of  illegality. 

276.  The  time  of  performance. 

277.  The  effect  of  the  breach  of  the  condition. 

278.  Waiver  of  performance. 

279.  Equitable  relief  against  forfeiture. 

280.  Estates  upon  condition,  distinguished  from  trusts. 

281.  Same  —  From  estates  upon  limitation,  and  conditional  limita- 

tions. 

§  271.  Definition  of  an  estate  npon  condition. — This 
estate  is  one  which  is  made  to  vest,  to  be  enlarged  or  defeated, 
upon  the  happening  or  not  happening  of  some  event.1  If  the 
estate  is  to  be  created  or  enlarged  upon  the  performance  of  the 
condition,  and  not  before,  it  is  called  a  condition  precedent; 
if  the  condition  is  to  defeat  an  estate  already  vested,  it  is  a 
condition  subsequent.  Conditions  are  also  divided  into  ex- 
press and  implied.  An  express  condition  is,  as  its  name 
implies,  one  which  is  expressly  created  in  the  instrument, 
which  limits  the  estate  to  which  the  condition  is  annexed, 
and  is  otherwise  called  a  condition  in  deed;  while  an  implied 
condition  is  not  expressly  declared,  but  arises  by  implica- 
tion of  law,  and  is  generally  annexed  to  certain  estates  as 
an  invariable  incident.2  The  annexation  of  a  condition  to 
an  estate  does  not  prevent  its  alienation  or  disposition  by 
devise.     The  only  effect  is,  that  the  alienee  or  devisee  takes 

1  2  Washb.  on  Real  Prop.  2  ;  Co.  Lit.  201  a. 

2  2  Washb.  on  Real  Prop.  3;  Co.  Lit.  201  a;  Vanhorne's  Lessee  v.  Dor- 
rance,  3  Dall.  317. 

179 


§    272  ESTATES  UPON  CONDITION.  [PART    I. 

the  estate  subject  to  the  possibility  of  forfeiture  by  a  failure 
to  perform  the  condition.1  Nor  does  the  presence  of  the 
condition  alter  the  character  of  the  estate,  that  is,  deter- 
mine whether  it  is  a  freehold,  or  not.  Thus  an  estate  to  A. 
for  fifty  years,  provided  he  lives  so  long,  is  a  leasehold, 
and  an  estate  to  A.  for  life,  provided  he  does  not  live  longer 
than  fifty  years  is  a  life  estate,  notwithstanding  the  first  is 
to  terminate  with  his  life,  even  though  the  fifty  years  have 
not  expired,  and  the  second  is  to  terminate  with  the  expira- 
tion of  the  fifty  years,  although  he  is  still  alive.2 

§  272.  Words  necessary  to  ereate  an  estate  upon  con- 
dition.—  No  particular  words  or  forms  of  expression  are 
really  necessary  for  the  creation  of  such  an  estate.  Any 
words,  particularly  in  Mills,  which  show  the  intention  to 
annex  a  condition  to  the  estate  granted,  will  be  sufficient. 
Such  phrases,  however,  as  "on  condition,"  "provided," 
"if  it  shall  so  happen,"  etc.,  are  found  in  constant  use, 
and,  if  resorted  to,  will  remove  any  doubt  as  to  the  grant 
being  an  estate  upon  condition.3  As  intimated,  it  is  more 
difficult  in  devises,  than  in  grants,  to  determine  whether 
they  are  conditional,  and  even  such  phrases  as  those  above 
mentioned  in  the  case  of  devises,  do  not  necessarily  create 
an  estate  upon  condition,  if  from  the  context  the  testator 
appears  to  have  had  a  contrary  intention.4 

1  2  Washb.  on  Keal  Prop.  23;  "Wilson  v.  Wilson,  38  Me.  18;  Underbill  t;. 
Saratoga  and  Washington  R.  H.  Co.,  20  Barb.  45 ;  Taylor  v.  Sutton,  15  Ga.  103. 

3  2  Washb.  on  Real  Prop.  23;  Co.  Lit.  42  a;  Ludlow  v.  New  York,  etc.,  R. 
R.  Co.,  12  Barb.  440. 

3  2  Washb.  on  Real  Prop.  3.  But  it  must  be  expressed  in  the  deed;  it 
cannot  be  created  by  parol.  Marshall,  etc.,  School  v.  Iowa,  etc.,  School,  28 
Iowa,  360.  If  the  right  of  entry  is  reserved  for  the  breach  of  a  covenant  in 
the  deed,  it  gives  to  the  covenant  the  character  of  a  condition  and  converts 
the  estate  into  an  estate  upon  condition.  Moore  v.  Pitts,  53  N.  Y.  85;  Aver 
v.  Emery,  14  Allen,  69;  Rawson  v.  Uxbridge,  7  Allen,  125;  Waters  v.  Breden, 
70  Pa.  St.  235;  Wheeler  v.  Walker,  2  Conn.  201;  Supervisors,  etc.,  v.  Patter- 
son, 50  111.  119.     See  post,  sect.  863. 

*  2  Washb.  on  Real  Prop.  4.  See  Wheeler  v.  Walker,  2  Conn.  201 ;  Hav- 
180 


CH.  IX.]  ESTATES  UPON    CONDITION.  §    273 

§  273.  Conditions  precedent  and  subsequent,  further 
distinguished.  —  It  is  not  always  an  easy  matter  to  deter- 
mine in  a  given  case  whether  a  condition  is  precedent  or 
subsequent.  It  is  clear  that  in  a  grant  to  A.  upon  his  mar- 
riage, or  in  a  lease  for  ten  years,  and  if  he  pays  a  certain 
sum  of  money,  then  to  him  and  his  heirs  forever,  the  con- 
ditions are  precedent;  or  that  in  a  grant  to  A.  for  life, 
provided  she  remains  a  widow,  or  a  grant  in  fee  with  a  rent 
reserved,  with  right  of  entry  upon  failure  to  pay,  they  are 
conditions  subsequent.  But  in  wills,  particularly,  great 
difficulty  is  sometimes  experienced  in  reaching  a  definite 
conclusion  on  this  point.  The  construction  is,  of  course, 
governed  by  the  intention  of  the  grantor  or  devisor,  as  ob- 
tained from  the  instrument  of  conveyance.  Perhaps  the 
rule  for  the  determination  of  the  character  of  a  condition  is 
best  expressed  in  the  words  of  the  court  in  the  case  cited 
below,  viz.  :  "  If  the  act  or  condition  required  do  not  nec- 
essarily precede  the  vesting  of  the  estate,  but  may  accom- 
pany or  follow  it,  and  if  the  act  may  as  well  be  done  after, 
as  before  the  vesting  of  the  estate  ;  or  if,  from  the  nature 
of  the  act  to  be  performed,  and  the  time  required  for  its 
performance,  it  is  evidently  the  intention  of  the  parties  that 
the  estate  shall  vest,  and  the  grantee  perform  the  act  after 
taking  possession,  then  the  condition  is  subsequent."  1  But 
while  the  courts  are  inclined,  in  any  case  of  doubt,  to  treat 

den  v.  Stoughton,  5  Pick.  528;  Austin  v.  Cambridgeport  Parish,  21  Pick.  215; 
Stuyvesant  v.  Mayor  of  N.  Y.,  11  Paige  Ch.  427 ;  Lindsey  v.  Lindsey,  45  Ind. 
552. 

1  Underhill  v.  Saratoga  and  Washington  R.  E.  Co.,  20  Barb.  455.  See  also 
Finlay  v.  King's  Lessee,  3  Pet.  340;  Taylor  v.  Maxon,  9  Wheat.  325;  Hayden 
r.  Stoughton,  5  Pick.  528 ;  Marwick  v.  Andrews,  25  Me.  525 ;  Austin  v.  Cam- 
bridgeport Parish,  21  Pick.  215;  Wheeler  v.  Walker,  2  Conn.  201 ;  Van  Rens- 
selaer v.  Ball,  19  N.  Y.  100;  Barruss  v.  Madan,  2  Johns.  145;  Horsey  v. 
Horse}-,  4  Harr.  517 ;  Waters  v.  Bieden,  70  Pa.  St.  235 ;  Jones  v.  Walker,  13 
B.  Mon.  163 ;  Hunt  v.  Beeson,  18  Ind.  382 ;  Jones  v.  Doe,  2  111.  276 ;  Rogan 
v.  Walker,  1  Wis.  527 ;  Barksdale  v.  Elam,  30  Miss.  694 ;  Monrue  v.  Bowen, 
26  Mich.  523. 

181 


§    274  ESTxVTES  UPON  CONDITION.  [PART    I. 

the  condition  as  subsequent,  yet  a  stricter  rule  of  construc- 
tion is  applied  than  if  the  condition  is  precedent.  It  must 
be  created  by  express  limitation,  or  arise  by  necessary 
implication,  in  order  to  work  a  forfeiture  of  an  estate  already 
vested.1  And  if  the  performance  of  the  condition  is  not 
expressly  imposed  upon  the  heirs  and  assigns,  its  breach  will 
not  work  a  forfeiture,  if  the  estate  has  previously  descended 
to  the  heirs,  or  has  been  conveyed  away.  In  such  a  case, 
the  estate  cannot  be  forfeited  for  any  breach  of  the  condi- 
tion, occurring  after  the  grantee  has  parted  with  the  estate.2 

§  274.  Invalid,  conditions  —  Impossibility  of  perform- 
ance.—  If  the  condition  is  impossible  from  the  beginning, 
and  is  for  that  reason  manifestly  absurd,  or  becomes  impos- 
sible through  the  act  of  the  grantor,  or  by  the  act  of  God  or 
inevitable  accident,  the  performance  will  be  excused,  and 
the  condition  held  void.  Its  invalidity,  however,  would  have 
a  different  effect  upon  the  estate,  according  as  it  is  a  condi- 
tion precedent  or  subsequent.  If  the  condition  is  prece- 
dent, the  estate  will  fail,  just  as  if  the  condition  was  valid 
and  had  been  broken.3  But  if  it  is  a  condition  subsequent, 
its  invalidity  would  destroy  the  right  of  entry  and  forfeiture 
in  the  grantor,  aud  leave  the  estate  in  the  grantee  absolute 
and  free  from  the  condition.4 

1  Laberee  v.  Carleton,  53  Me.  213;  Merrifield  v.  Cobleigh,  4  Cush.  178; 
Bradstreet  v.  Clark,  21  Pick.  389;  Hoyt  v.  Kimball,  49  N.  H.  327;  Ludlow  v. 
N.  Y.  and  Harlem  R.  R.  Co.,  12  Barb.  440;  Martin  v.  Ballou,  13  Barb.  119; 
Mc Williams  v.  Nisley,  2  Serg.  &  It.  523;  McKelway  o.  Seymour,  29  N.  J.  L. 
322;  Gadberry  v.  Sheppard,  27  Miss.  203;  Voris  v.  Benshaw,  49  111.  432; 
Board,  etc.,  u.  Trustees,  etc.,  63  111.  204. 

2  2  Washb.  on  Real  Prop.  7,  8;  Emerson  v.  Simpson,  43  N.  H.  475;  Page 
v.  Palmer,  48  N.  H.  385. 

3  Co.  Lit.  206 ;  Harvey  v.  Aston,  1  Atk.  374 ;  Taylor  v.  .Mason,  9  Wheat. 
325;  Martin  v.  Ballon,  13  Barb.  119;  Yanhorne's  Lessee  o.  Dorrance,  2  Dall. 
317;  Mizell  v.  Burnett,  4  Jones  L.  249. 

*  Co.  Lit.  206  a;  Walker  (Am.  Law),  298;  Brandon  v.  Robinson,  18  Ves. 
429;    Bradley   v.  Peixoto,  3  Ves.  324;    Hughes   v.  Edwards,  9  Wheat.  489; 
Blackstone  Bank  v.  Davis,  12  Pick.  42 ;  Badlam  v.  Tucker,  1  Pick.  284 ;  Mer- 
182 


CH.  IX.]  ESTATES  UPON  CONDITION.  §    275 

§   275.   Invalid    conditions  —  Because  of    illegality. — 

Similar  effects  would  be  produced,  if  the  condition  is 
invalid,  because  of  its  illegality.  A  condition  is  illegal, 
whenever  it  involves  the  performance  of  an  act  prohibited 
by  law.  Thus  a  condition,  that  the  grantee  shall  commit 
a  murder  or  any  other  crime,  would  be  void;  and,  if  it  is  a 
condition  subsequent,  the  grantee  would  take  an  absolute 
estate.  The  illegal  conditions,  most  commonly  met  with, 
are  those  restricting  marriage  and  the  alienation  of  a  fee  sim- 
pie  state  by  the  grantee.  An  absolute  restriction  of  that 
kind  would  be  just  as  invalid  as  the  condition  to  commit  a 
crime.1  But  if  the  restriction  is  only  for  a  limited  period, 
as  during  minority,  or  coverture,  or  if  it  is  directed  only 
against  certain  persons,  as  that  the  grantee  shall  not  alien 
to,  or  marry,  a  certain  named  person  or  class  of  persons,  it 
is  a  good  condition  and  can  be  enforced.2  A  condition, 
restraining  the  alienation  of  a  life  estate  or  one  for  years, 
is  valid,  even  though  it  is  absolute  both  as  to  persons  and 

rill  v.  Emery,  10  Pick.  507 ;  Taylor  v.  Sutton,  15  Ga.  103 ;  Jones  v.  Doe,  2  111. 
276 ;  Gadberry  v.  Sheppard,  27  Miss.  203. 

1  Brandon  v.  Robinson,  18  Ves.  429 ;  Anglesea  v.  Churcb  Wardens,  6  Q. 
B.  114;  Willis  v.  Hiscox,  4  Mylne  &  Cr.  197;  Hall  v.  Tuffts,  18  Pick.  455; 
Blackstone  Bank  v.  Davis,  21  Pick.  42 ;  Schermerborn  v.  Myers,  1  Denio, 
448;  De  Peyster  v.  Michael,  6  N.  Y.  467;  Taylor  v.  Suttin,  15  Ga.  103;  Gad- 
berry  v.  Sheppard,  27  Miss.  203;  Bertie  v.  Falkland,  2  Freem.  222;  Walker 
■w.Vincent,  17  Harris,  369;  Williams  v.  Cowden,  13  Mo.  211.  But  where  the 
estate  is  granted  to  a  widow  during  widowhood,  it  being  an  estate  upon  limi- 
tation and  not  an  estate  upon  condition,  it  is  a  good  limitation,  and  the  estate 
will  terminate  upon  her  marriage.  Co.  Lit.  42  a;  ante,  sect.  60;  Harmon  v. 
Brown,  58  Ind.  207 ;  Coppage  v.  Alexander's  Heirs,  2  B.  Mon.  113.  But  if  the 
devise  is  for  life,  or  during  widowhood,  having  first  given  her  an  estate  for 
life,  the  subsequent  limitation  during  widoiohood  operates  as  a  condition;  it 
must  be  cons' rued  to  be  a  condition  and  therefore  void.  Lloyd  v.  Lloyd,  2 
Sim.  (n.  s.),  2-35;  Binnerman  v.  Weaver,  8  Md.  517;  Coon  v.  Bean,  69  Ind. 
474;  Stillwell  v.  Knapper,  69  Ind.  558;  35  Am.  Rep.  240;  contra,  Walsh 
v.  Mathews,  11  Mo.  131 ;  Dumey  v.  Schaeffer,  24  Mo.  170. 

2  Co.  Lit.  223  a ;  2  Washb.  on  Real  Prop.  9 ;  Hunt  v.  Wright,  47  N.  H.  396 ; 
Plumb  v.  Tobbs,  41  N.  Y.  442 ;  McWilliams  v.  Nisly,  2  Serg.  &  R.  513 ; 
Schackleford  v.  Hall,  19  111.  212;  Attwater  v.  Attwater,  18  Beav.  330;  Large's 
Case,  2  Leon.  82 ;  Stewart  v.  Bradv,  3  Bush.  623. 

183 


§  277  ESTATES  UPON  CONDITION.         [PART  I. 

time.1  So  also  will  a  condition  be  void,  which  defeats  the 
estate,  if  it  is  appropriated  to  the  payment  of  the  grantee's 
debts.2  But  an  estate  may  be  limited  to  determine  upon  the 
insolvency  or  bankruptcy  of  the  grantee;  in  such  a  case, 
however,  the  estate  would  be  one  upon  limitation  and  not 
upon  condition.3 

§  276.  The  time  of  performance. —  If  there  is  a  time 
specified,  within  which  the  condition  is  to  be  performed,  it 
cannot  be  performed  afterwards.  Where  there  is  no  ex- 
press specification  of  time,  it  must  be  determined  from  the 
apparent  intention  of  the  grantor  or  testator,  as  gathered 
from  the  context  and  the  nature  of  the  condition.  Gener- 
ally, if  the  time  of  performance  is  not  limited,  the  grantee 
has  his  whole  life  in  which  to  perform.  But  if  a  prompt 
performance  appears  to  have  been  intended  from  the  use  of 
words  in  the  present  tense,  or  if  in  any  other  way  an  im- 
mediate performance  is  indicated ;  or  if  an  early  perform- 
ance is  necessary,  in  order  that  the  grantor  may  obtain  the 
expected  benefit,  the  grantee  has  only  a  reasonable  time  in 
which  to  perform.  Thus,  where  an  estate  was  conveyed 
upon  condition,  that  the  grantee  should  pay  a  certain  mort- 
gage upon  the  estate,  a  prompt  compliance  with  the  con- 
dition was  held  necessary.4 

§   277.  The  effect  of  a  preach  of  the  condition.  — If  it 

is  a  condition  precedent,  the  failure  to  perform  will  prevent 
the  estate  from  taking;  effect.     But  if  it  is  a  condition  subse- 

o 

1  1  Washb.  on  Keal  Prop.  118,  507;  1  Cruise  Dig.  108;  see  ante  sects. 
64,  182.  The  statute  quia  emptores,  which  made  conditions  in  restraint  of 
alienation  void,  only  applied  to  estates  in  fee. 

2  Brandon  v.  Robinson,  18  Ves.  429;  Blackstone  Bank  v.  Davis,  21  Pick.  42. 

3  See  post,  sect.  603. 

*  Co.  Lit.  208  b;  Finlay  v.  King's  Lessee,  3  Pet.  374;    Hayden  v.  Stoughon, 

5  Pick.  528;  Ross  v.  Tremain,  2  Mete.  495;  Allen  v.  Howe,  105  Mass.  241; 
Williams  v.  Angell,  7  R.  I.  152;  Stuyvesant  v.  Mayor  of  N.  Y.,  11  Paige  ch. 
425;  Nicoll  v.  N.  Y.  &  Erie  R.  R.,  13  N.  Y.  121 ;  Hamilton  v.  Elliott,  5  Serg. 

6  R.  875. 

184 


CH.  IX.]  ESTATES    UPON    CONDITION.  §    277 

quent,  the  estate  is  defeated  only  at  the  election  of  the 
parties  who  can  take  advantage  of  the  breach.1  At  common 
law  it  was  necessary  for  such  a  party  to  enter  upon  the  es- 
tate, in  order  to  work  a  forfeiture.  It  could  not  be  effected 
by  bringing  an  action  for  the  recovery  of  the  possession. 
This  rule  has  been  somewhat  changed,  so  that  at  the  present 
time  the  ordinary  action  of  ejectment  would  have  the  same 
effect  as  the  common-law  entry.2  This  right  of  entry  need 
not  be  expressly  reserved  where  the  condition  is  express. 
It  follows  as  a  necessary  incident  to  the  condition  and 
passes  with  the  condition,  into  whosoever  hands  it  may 
come.3  Conditions  are  reserved  only  to  the  grantor  and  his 
heirs.  They  cannot  be  reserved  for  the  benefit  of  third  per- 
sons. As  a  general  rule,  therefore,  only  the  grantor  and  his 
heirs  have  a  right  to  enter  upon  condition  broken,  and  they 
lose  their  rights,  if  they  should  convey  away  the  reversion  in 
them.  The  right  of  entry  is  not  an  estate,  not  even  a  pos- 
sibility of  reverter ;    it  is  simply  a  chose  in  action.*     And 

1  The  breach  of  the  condition  does  not  alone  defeat  the  estate.  Webster 
v.  Cooper,  14  Bow.  501;  Tallman  v.  Snow,  35  Me.  342;  King's  Chapel  v. 
Pelham,  9  Mass.  501 ;  Hubbard  v.  Hubbard,  97  Mass.  192  ;  Willard  v.  Henry, 
2  N.  H.  120;  Warner  v.  Bennett,  31  Conn.  477;  Ludlow  v.  N.  Y.  &  Harlem 
E.  R.,  12  Barb.  440;  Canal  Co.  v.  Railroad  Co.,  4  Gill  &J.  121;  Phelps  ». 
Chesson,  12  Ired.  194. 

2  See  1  Prest.  Est.  46,  48,  50;  Co.  Lit.  201  a;  2  Washb.  on  Real  Prop.  13 ; 
Goodright  v.  Cator,  Dougl.  485;  Duppa  v.  Mayo,  1  Saund.  287  c,  note;  1 
Smith  Ld.  Cas.  89;  Doe  v.  Masters,  2  B.  &  C.  490;  Jones  v.  Carter,  M.  & 
W.  718;  Osgood  v.  Abbott,  58  Me.  73;  Sperry  v.  Sperry,  8  N.  H.  77;  Mc- 
Kelway  v.  Seymour,  29  N.  J.  L.  329;  Jackson  v.  Crysler,  1  Johns.  125; 
Fonda  v.  Sage,  46  Barb.  123;  Green  v.  Pettingill,  47  N.  H.  375;  Austin  v. 
Cambridgeport  Parish,  21  Pick.  224;  Stearns  v.  Harris,  8  Allen,  598;  Phelps 
v.  Chesson,  12  Ired.  L.  194;  Chalker  v.  Chalker,  1  Conn.  79. 

s  Osgood  v.  Abbott,  58  Me.  73;  Gray  v.  Blanchard,  8  Pick.  284;  Jackson 
v.  Allen,  3  Cow.  220;  Jackson  v.  Topping,  1  Wend.  388;  Bowen  v.  Bowen, 
18  Conn.  535;  Wheeler  v.  Walker,  2  Conn.  201. 

4  Shulenberg  v.  Harriman,  21  Wall.  346;  Hooper  v.  Cummings,  45  Me. 
359;  Gray  v.  Blanchard,  8  Pick.  284;  Merrill  v.  Harris,  102  Mass.  328;  Van 
Rensselaer  v.  Ball,  1!)  N.  Y.  103;  De  Peyster  v.  Michael,  6  N.  Y.  506;  Fonda 
v.  Sage,  46  Barb.  122 ;  Michal  v.  N.  Y.  &  Erie  R.  R.,  12  N.  Y.  132 ;  Cross  v. 

185 


•§    277  ESTATES    UPON    CONDITION.  [PART   I. 

although  it  has  been  held  that  an  express  condition  can  be 
devised  with  the  reversion,  and  the  devisee  and  his  heirs 
enter  for  the  breach,1  yet  such  a  condition  cannot  be  aliened 
or  assigned,  and  does  not  pass  with  a  grant  of  the  rever- 
sion.2 This  rule  against  assignment  of  the  right  of  entry 
was  restricted  by  the  statute,  32  Hen.  VIII.  ch.  34,  to  free- 
hold estates  upon  condition,  thus  enabling  the  assignees  of 
the  reversion  to  enforce  the  forfeiture  of  leasehold  estates 
for  the  breach  of  the  condition.3  But  if  it  be  a  condition 
in  law,  or  an  implied  condition,  the  right  of  entry  was  al- 
ways assignable,  it  being  considered  more  in  the  nature  of 
an  incident  to  the  right  of  property,  than  a  separate  and  in- 
dependent chose  in  action.*  But  the  condition  cannot  be 
apportioned  between  two  or  more  assignees  of  separate 
portions  of  the  reversion,  and  it  will  be  destroyed  by  such 
dissection  of  the  reversion.6  If  the  grantor  is  in  possession 
of  the  property  at  the  time  of  the  breach,  no  act  of  entry 

Carson,  8  Blackf.  138 ;  Co.  Lit.  201  a,  Butler's  note,  84 ;  2  Washb.  on  Real 
Prop.  13-15. 

1  This  appears  to  be  a  local  rule  in  Massachusetts.  Hayden  v.  Stoughton, 
5  Pick.  528;  Clapp  v.  Stoughton,  10  Pick.  463;  Austin  v.  Cambridgeport, 
Parish,  21  Pick.  215.  See  contra,  Avelyn  v.  "Ward,  1  Ves.  sr.  422;  South- 
ard v.  Central  R.  R,  26  N.  J.  L.  21 ;  Cornelius  v.  Ivins,  25  N.  J.  L.  386.  See 
also  Webster  v.  Cooper,  14  How.  (U.  S.)  501 ;  Nicoll  v.  N.  Y.  &  Erie  R.  R., 
12  N.  Y.  121 ;  Henderson  v.  Hunter,  59  Pa.  St.  341;  Jones  v.  Roe,  3  T.  R. 
38. 

2  Co.  Lit.  214  a;  Hooper  v.  Cummings,  45  Me.  359;  Gray  v.  Blanchard,  8 
Pick.  284;  Guild  v.  Richards,  16  Gray,  309;  Gibert  v.  Peteler,  38  N.  Y  165; 
Nicoll  v.  N.  Y.  &  Erie  R.  R,  12  Barb.  461 ;  s.  c.  12  N.  Y.  132 ;  Warner  v. 
Bennett,  31  Conn.  478;  Norris  v.  Milner,  20  Ga.  563;  Torop  v.  Johnson,  3 
Ind.  313;  Cross'  v.  Carson,  8  Blackf.  138;  Smith  v.  Brannan,  13  Cal.  107. 

3  Co.  Lit.  215  a;  1  Washb.  on  Real  Prop.  476;  Fenn  v.  Smart,  12  East.  444; 
Lewes  v.  Ridge,  Cro.  Eliz.  863 ;  Nicoll  v.  N.  Y.  &  Erie  R  R.,  12  Barb.  461 ; 
s.  c.  12  N.  Y.  132;  Van  Rensselaer  v.  Ball,  19  N.  Y.  102;  Burden  v.  Thayer, 
-3  Mete.  76;  Trask  v.  Wheeler,  7  Allen   111;  Plumleigh  v.  Cook,  13  111.  669. 

*  2  Washb.  on  Real  Prop.  13;  Co.  Lit.  214. 

5  Co.  Lit.  215  a;  Taylor's  L.  &  T.  sect.  296;  Wright  v.  Burroughs,  3 
Maifn.  Gr.  &  S.  700;  Doe  v.  Lewis,  5  Ad.  &  El.  277;  s.  c.  31  Eng.  C.  L.  277; 
Cruder  v.  McLaury,  41  N.  Y.  225. 

LSI! 


CH.  IX.]  ESTATES    UPON    CONDITION.  §    278 

as  required  of  him,  in  order  to  defeat  the  estate.  But  if  he 
is  out  of  possession,  he  must  enter,  or  do  acts  equivalent  to 
entry,  with  the  express  intention  of  thereby  working  a  for- 
feiture. Entry  without  such  an  intention  would  have  no 
effect.1  The  right  of  entry  may  be  exercised,  even  though 
the  breach  of  the  condition  has  worked  no  material  injury 
to  the  grantor.  And  he  can  exercise  it,  notwithstanding  he 
may  have  other  equally  effective  remedies.2 

§  278.  Waiver  of  performance.  —  If  the  party,  who  is 
entitled  to  the  right  of  entry,  waives  the  performance  by  an 
actual  release  of  the  condition  or  by  an  express  license,  the 
condition  is  gone,  and  he  cannot  take  advantage  of  any  sub- 
sequent breach.  But  a  mere  acquiescence,  without  actual 
license,  would  only  constitute  a  waiver  of  the  present 
breach,  and  the  right  of  entry  for  subsequent  breaches 
would  survive.3  This  waiver  may  result  from  acts,  as  well 
as  from  agreements.  Thus  if  there  is  a  condition  attached 
to  a  lease  against  its  assignment,  the  subsequent  acceptance 
of  rent  from  the  assignee,  or  the  beginning  of  an  action  for 
rent  accruing  after  the  breach,  will  constitute  a  waiver  of 
the  breach.4     But  mere  delay  in  making  the  entry  will  not 

1  Andrews  v.  Senter,  32  Me.  394;  Williard  v.  Henry,  2  N.  H.  120;  Rol- 
lins v.  Riley,  44  N.  H.  13;  Bowen  v.  Bowen,  18  Conn.  535;  Hamilton  v. 
Elliott,  5  Serg.  &  R.  375.  And  where  he  is  in  possession,  his  retention  of  pos- 
session after  the  breach  will  not  necessarily  work  a  forfeiture.  He  may,  even 
under  such  circumstances,  waive  the  breach,  and  thus  prevent  a  forfeiture. 
Guild  v.  Richards,  16  Gray,  317;  Hubbard  v.  Hubbard,  97  Mass.  192. 

a  Gray  v.  Blanchard,  8  Pick.  284;  Stuyvesant  v.  Mayor  of  N.  Y.,  11  Paige 
Ch.  414;  2  Washb.  on  Real  Prop.  17,  18. 

3  2  Washb.  on  Real  Prop.  19;  Co.  Lit.  211b;  Andrews  v.  Senter,  32  Me.  397; 
Gray  v.  Blanchard,  8  Pick.  284;  Hubbard  v.  Hubbard,  97  Mass.  192;  Doe  v. 
•Gladwin,  G  Q.  B.  (51  Eng.  C.  L.)  953;  Guild  v.  Richards,  16  Gray,  326;  Doe 
v.  Jones,  5  Exch.  498;  Doe  v.  Peck,  1  B.  &  Ad.  (20  Eng.  C.  L.)  428 ;  Chalker 
«?.  Chalker,  1  Conn.  79;  Jackson  v.  Crysler,  1  Johns.  126. 

*  Hubbarb  v.  Hubbard,  97  Mass.  192;  Coon  v.  Brecket,  2  N.  H.  153; 
Chalker  v.  Chalker,  1  Conn.  79;  Jackson  v.  Crysler,  1  Johns.  126.  But  it 
<haabeen  held,  ai.d  perhaps  it  is  the  better  opinion,  that  in  order  that  the  ac- 

187 


§    279  ESTATES    UPON    CONDITION.  [PART    I- 

have  the  effect  of  a  waiver,  unless  such  apparent  acquies- 
cence is  sufficient  to  induce  the  grantee  to  incur  expenses, 
and  the  subsequent  exercise  of  the  right  of  entry  would  in 
consequence  work  a  legal  fraud  upon  him.  Thus,  wherein 
a  grant  to  a  railroad  the  condition  was,  that  the  road  should 
be  finished  within  a  certain  time;  the  grantor  stood  by 
and  acquiesced  in  the  continuance  of  the  work  after  the  ex- 
piration of  the  time  stipulated,  and  the  right  of  entry  was 
held  to  be  waived  under  the  doctrine  of  estoppel.  But, 
except  in  special  cases  like  this,  only  affirmative  acts  and 
express  agreements  by  the  grantor  will  have  the  effect  of 
a  waiver.1 

§   279.  Equitable    relief    against    forfeiture.  —  As     a 

general  proposition,  equity  will  neither  relieve  against,  nor 
enforce,  a  forfeiture.  It  simply  leaves  the  parties  to  their 
remedies  at  law.  Where  the  breach  is  the  result  of  an 
unlooked-for  accident,  and  where  the  damages  resulting 
therefrom  can  be  accurately  estimated  by  the  court,  as 
where  the  condition  calls  for  the  payment  of  a  sum  of 
money  at  a  particular  time,  it  may  be  a  mortgage,  or  a  rent 
reserved,  equity  will  prevent  a  forfeiture  and  decree,  instead 
thereof,  as  compensation  in  damages,  the  payment  of  the 
sum  of  money,  together  with  interest  for  the  time  which  has 
elapsed.2     But  if  the  condition  be  some  act,  collateral  to 

ceptance  of  rent  may  constitute  a  waiver  of  forfeiture  for  non-payment  of 
rent,  it  must  be  rent  accruing  after  the  breach.  Jackson  v.  Allen,  3  Cow. 
220;  Hunter  v.  Osterhoudt,  11  Barb.  33 ;  Price  v.  Worwood,  4  H.  &  N.  612; 
Green's  Case,  Cro.  Eliz.  1 ;  s.  c.  1  Leon.  262.  See  Downes  v.  Turner,  2  Salk~ 
697;  Dumpor's  Case,  4  Hep.  119;  s.  c,  1  Smith's  Ld.  Cas.,  note. 

i  Dudlow  v.  N.  Y.  &  Harlem  K.  K.,  12  Barb. 440.  See  Williams  v.  Dakin, 
22  Wend.  209;  Jackson  v.  Crysler,  1  Johns.  126;  Sharon  Iron  Co.  v.  City  of 
Erie,  41  Pa.  St.  349;  Gray  V  Blanchard,  8  Pick.  284;  Doe  v.  Gladwin,  6  Q. 
B.  (51  Eng.  C.  L.)  953;  Doe  v.  Peck,  1  B.  &  Ad.  (20  Eng.  C.  L.)  428;  Doe  v. 
Jones,  5  Exch.  498. 

2  Goodtitle  v.  Holdfast,  2  Strange,  900;  Hill  v.  Barclay,  18  Ves.  56;  Stone 
v.  Ellis,  9  Cush.  95;  Atkins  v.  Ohilson,  11  Mete.  112;  Hancock  v.  Carlton,  6 
Gray,  39;  Bethlehem  v.  Annis,  40  N.  H.  34;  City  Bank  v.  Smith,  3  Gill  &  J- 
188 


CH.IX.]    LIMITATION    AND    CONDITIONAL    LIMITATIONS.    §    281 

the  grant,  and  one  which  cannot  be  estimated  in  damages, 
as  where  the  condition  is  to  repair,  or  against  the  acquisi- 
tion of  rights  of  easement  by  third  parties ;  or  where  the 
breach  is  not  the  result  of  inevitable  accident,  but  is 
wilfully  or  negligently  committed,  equity  will  not  interfere.1 

§   280.  Estate     upon     condition    distinguished    from 

trusts.  —  It  is  sometimes  difficult  in  devises,  to  ascertain 
whether  the  testator  intended  to  create  an  estate  upon 
condition,  or  one  upon  trust.  If  he  intended  the  former, 
there  can  be  no  relief  against  forfeiture, 'except  as  already 
explained,  nor  can  performance  of  the  condition  be 
enforced.  But  if  an  estate  upon  trust  was  intended,  and 
what  appeared  to  be  conditions  were  directions  to  trustees, 
explanatory  of  what  they  should  do  with  the  estate,  a 
failure  to  perform  would  not  result  in  an  absolute  forfeiture, 
but  a  court  of  equity  would  interpose  in  behalf  of  the 
cestui  que  trust  and  enforce  a  performance  of  those  acts, 
which  were  intended  for  his  benefit.  The  conclusion  in 
every  case  depends  upon  the  ascertained  intention  of  the 
testator,  and  the  devise  will  in  proper  cases  be  declared  upon 
trust,  instead  of  upon  condition,  though  the  words,  "  pro- 
vided," "  on  condition,"  etc.,  are  used  in  that  connection.2 

§  281.  Same  —  From  estates  upon  limitation  and  con- 
ditional limitations. — An  estate  upon  limitation  is  one 
which  is  made  to  determine  absolutely  upon  the  happening 

265;  Skinner  v.  Dayton,  2  Johns.  Ch.  526;  "Warner  v.  Bennett,  31  Conn.  478; 
Williams  v.  Angell,  7  K.  I.  152 ;  Beatey  v.  Harkey,  2  SmeS.  &  M.  563. 

1  Hill  v.  Barclay,  18  Ves.  56;  Descarlett  v.  Dennett,  9  Mod.  22;  Elliott  v. 
Turner,  13  Sim.  Ch.  485;  Wafer  v.  Mocato,  9  Mod.  112;  Reynolds  v.  Pitt,  2 
Price,  212;  Hancock  v.   Carlton,  6  Gray,  39;  Henry  v.  Tupper,  29  Vt.  56 
Dunkley  v.  Adams,  20  Vt.  415;  Bacon  v.  Huntington,  14  Conn.  92;  Skinner 
t>.  Dayton,  2  Johns.  Ch.  526 ;  Livingston  v.   Thompkins,  4  Johns.  Ch.  431 
Baxter  v.  Lansing,  7  Paige  Ch.  350;  City  Bank  v.  Smith,  3  Gill  &  J.  265. 

»  Stanly  v.  Colt,  5  Wall.  (U.  S.  165).     See  Linsee  v.  Mixer,  101  Mass.  512 
Dorr  v.  Hallaran,  lb.,  534. 

189 


§    281    LIMITATION    AND    CONDITIONAL    LIMITATIONS.    [PART  I. 

of  some  future  event  as  an  estate  to  A.,  so  long  as  she 
remains  a  widow.  The  technical  words,  generally  used  to> 
create  a  limitation,  are  conjunctions  relating  to  time,  such  as 
during,  while,  so  long  as,  until,  etc.  But  these  words  are 
not  absolutely  necessary;  for  where  it  is  necessary,  in  order 
to  carry  out  the  intent  of  the  grantor,  to  construe  an  estate 
to  be  a  limitation,  it  will  be  done,  even  though  words,, 
ordinarily  used  in  the  creation  of  an  estate  upon  condition,, 
appear  in  their  stead.1  An  estate  upon  limitation  differs- 
from  one  upon  condition  in  this,  that  the  estate  is  deter- 
mined ipso  facto  by  the  happening  of  the  contingency,  and 
does  not  require  any  entry  by  the  grantor  in  order  to  defeat 
it.2  A  conditional  limitation  is  an  estate  limited  to  take 
effect  upon  the  happening  of  the  contingency,  and  which 
takes  the  place  of  the  estate  which  is  determined  by  such 
contingency.  Some  authors,  among  others,  Mr.  \Yashburn,. 
have  used  the  terms  conditional  limitations  and  limitations- 
interchangeable,  referring  in  both  instances  to  the  estate,, 
which  is  determined  by  the  happening  of  the  event.5  But 
it  appears  to  be  the  better  method  to  apply  the  term 
conditional  limitation  to  the  estate  which  takes  effect,  and 
limitation  to  the  estate  which  is  determined.4     Using  the 

1  1  Prest.  Est.  129;  Co.  Lit.  203  b;  Mary  Portington's  Case,  10  Rep.  42? 
Chapin  v.  Harris,  8  Allen,  594;  Ashley  v.  Warner,  11  Gray,  43;  Owen  v. 
Fields,  102  Mass.  105;  Miller  v.  Levi,  44  N.  Y.  4S9;  Henderson  v.  Hunter,  59* 
Pa.  St.  340. 

2  2  Bla.  Com.  155;  1  Prcst.  Est.  456;  2  Washb.  on  Real  Prop.  23,  26; 
Stearns  v.  Godfrey,  16  Me.  158;  Fifty  Associates  v.  Howland,  11  Mete.  102;. 
Proprietors,  etc.,  v.  Grant,  3  Gray,  142;  Attorney-General  v.  Merrimack  Co., 
14  Gra}',  612;  Owen  v.  Field,  102  Mass.  105;  Miller  v.  Levi,  44  N.  Y.  489 ;. 
Wheeler  v.  Walker.  2  Conn.  196 ;  Henderson  v.  Huntington,  59  Pa.  St.  340. 

»  2  Washb.  23,  26. 

4  Mr.  Washburn  quotes  from  Watkins  on  Conveyancing,  to  this  effect  i 
"  Between  a  condition  and  a  conditional  limitation  there  is  this  difference:  a 
condition  respects  the  destruction  and  determination  of  an  estate;  a  condi- 
tional limitation  relates  to  the  commencement  of  a  new  one.  A  condition 
brings  the  estate  back  to  the  grantor  or  his  heir-;  a  conditional  limitation 
carries  it  over  to  a  stranger."     Watkins,  Convey.  204.     A  conditional  limita- 

190 


CH.  IX.]    LIMITATION   AND    CONDITIONAL    LIMITATIONS.    §     281 

term  conditional  limitation  as  indicating  a  future  estate 
which  is  to  take  effect  in  derogation  of  a  preceding  limita- 
tion, it  may  be  stated  here  in  general  terms,  to  be  more 
clearly  explained  in  subsequent  pages,  that  it  was  unknown 
to  the  common  law.  The  only  common-law  future  estate,, 
which  can  be  created  by  the  same  deed  with  a  prior  limita- 
tion, is  a  remainder,  and  as  a  remainder  cannot  be  limited,, 
which  takes  effect  in  derogation  of  the  preceding  estate, 
conditional  limitations  are  not  recognized  by  the  common- 
law.  They  can  only  be  created  as  a  shifting  use,  or  an 
executory  devise.1 

tion  is  an  estate  limited  to  take  effect  after  the  determination  of  an  estate*, 
which  in  the  absence  of  a  limitation  over  would  have  been  an  estate  upon  con- 
dition. Strictly  speaking,  a  conditional  limitation  cannot  be  limited  after  an 
estate  upon  limitation.  Thus  in  a  grant  to  A.  during  widowhood,  and  upon 
her  marriage  to  B.,  A.'s  estate  would  be  an  estate  upon  limitation,  and  in  cop- 
sequence  B.'s  estate  would  be  a  good  common-law  remainder.  2  Washb.  on. 
Real  Prop.  563;  Fearne   Cont.  Rem.  5,  10.     Seejoos^,  sect.  412. 

1  2  Washb.  on  Real  Prop.  26,  28 ;  4  Kent's  Com.  128 ;  1  Prest.  Est.  50.. 
Sea  post,  sects.  898,  418,  536,  537. 

191 


CHAPTER    X. 

MORTGAGES. 

Section      I.  Nature  and  Classification  of  Mortgages. 

II.   The  rights  and  liabilities  of  Mortgagors  and  Mort- 
gagees. 
III.  Remedies  and  remedial  rights  incident  to  a  mortgage. 

SECTION   I. 

NATURE  AND   CLASSIFICATION   OF   MORTGAGES. 

Section  287.  Definition. 

288.  Mortgages  by  deposit  of  title  deeds. 

289.  Continued  —  Notice  to  subsequent  purchasers. 

290.  Continued  —  Their  recognition  in  this  country. 

291.  Continued  —  Foreclosure. 

292.  Vendor's  lien. 

293.  Continued  —  Discharge  or  waiver  of  the  lion. 

294.  Continued  —  In  whose  favor  raised. 

295.  Vendee's  lien. 

296.  Mortgage  at  common  law. 

297.  Vivum  vadium. 

298.  Welsh  mortgage. 

299.  Equity  of  redemption. 

300.  The  mortgage  in  equity, 

301.  Influence  of  equity  upon  the  law. 

302.  The  form  of  a  mortgage. 

303.  Execution  of  the  defeasance. 

304.  Form  of  defeasance. 

305.  Agreements  to  repurchase. 

306.  The  defeasance  clause  in  equity. 

307.  The  admissibility  of  parol  evidence. 

308.  Contemporaneous  agreements. 

309.  Subsequent  agreements. 

310.  The  mortgage  debt. 

311.  Mortgages  for  the  support  of  the  mortgagee. 

312.  What  may  be  mortgaged. 

192 


CH.  X.]  MORTGAGES.  §    288 

§  287.  Definition.  —  A  mortgage  is  an  interest  in  lands, 
given  to  secure  the  payment  of  a  sum  of  money  or  money's 
equivalent.  It  incumbers  the  title  of  the  land  and  enables 
the  creditor  or  obligee  to  satisfy  his  claim  by  a  sale  of  the 
land,  or  by  a  forfeiture  of  the  land  to  the  mortgagee. 
Before  explaining  the  character  and  incidents  of  the  com- 
mon-law mortgage,  which  will  constitute  the  principal  sub- 
ject of  the  present  chapter,  reference  will  be  made  to  several 
kinds  of  incumbrances  upon  land,  which,  although  gener- 
ally called  mortgages,  are  not  strictly  such.  The  first  of 
these  is  the  — 

§  288.  Mortgage  by  deposit  of  title  deeds.  — This  is  an 
ancient  security  for  debt,  which  at  one  time  was  in  general 
use  in  England,  and  even  now  is  employed  there  to  some 
extent.  By  the  deposit  of  the  title  deeds  of  a  tract  of  land 
with  the  creditor,  it  secured  to  him  in  equity  a  lien  upon  the 
land  for  the  amount  of  the  debt.  It  was  looked  upon  in 
equity  as  an  agreement  to  execute  a  mortgage  which  would 
be  enforced  against  the  depositor  and  all  other  persons  claim- 
ing under  him,  except  subsequent  purchasers  and  incum- 
brancers for  value  and  without  notice.1  Although  it  has  been 
strongly  objected  to,  as  violating  the  Statute  of  Frauds,  it 
is  now  definitely  settled  in  England  that  the  mortgage  by 
deposit  of  title  deeds  does  not  come  within  the  operation  of 
the  statute.2     The  mere  possession  by  the  creditor  of   the 

1  Story's  Eq.  Jur.  sect.  1020;  2  Washb.  on  Real  Prop.  83;  4  Kent's  Com. 
150,  151;  Russell  v.  Russell,  1  Bro.  C.  C.  269;  Ex  parte  Langstone,  17  Ves. 
230;  Pain  v.  Smith,  2  My].  &  K.  417;  Mandeville  v.  Welch,  5  Wheat.  277; 
Roberts  v.  Craft,  24  Beav.  223;  Edge  v.  Worthington,  Cox,  211;  Ex  parte 
Corning,  9  Ves.  Jr.  115;  Carey  v.  Rawson,  8  Mass.  159;  Jarvis  v.  Dutcher,  16 
Wis.  307. 

2  Whitbread,  ex  parte,  19  Ves.  209;  Haigh,  ex  parte,  11  Ves.  403;  Ex  parte 
Hooper,  19  Ves.  477;  Norris  v.  Wilkinson,  19  Ves.  192;  Russell  v.  Russell,  1 
Bro.  C.  C.  269.  In  Pennsylvania,  a  written  agreement  must  accompany  the 
rl*>nosit  of  the  title  deeds,  in  order  that  the  transaction  may  create  a  mortgage. 
Luch's  Appeal,  44  Pa.  St.  519;  Edwards  v.  Trumbull,  50  Pa.  St.  509. 

13  193 


§    289  MORTGAGES.  [PART    I. 

debtor's  muniments  of  title  will  not  raise  for  the  former  a 
lien  upon  the  land.  They  must  have  been  deposited  with 
him  with  the  express  intention  of  providing  alien,  in  order 
that  the  possession  may  have  that  effect.1  But  it  is  not  nec- 
essary that  all  the  title  deeds  in  the  chain  of  title  should  be 
deposited.  A  single  title  deed  would  be  sufficient  as  against 
the  depositor,  and  it  would  only  be  invalid  as  to  those,  who 
were  fairly  misled  by  the  fact  that  the  mortgagor  or  de- 
positor was  in  possession  of  the  other  deeds.2  And  as 
against  the  mortgagor  and  all  others  claiming  under  him 
with  notice,  the  mere  agreement  to  deposit  the  title-deeds  as 
security  would  suffice  to  make  the  debt  an  equitable  charge 
upon  the  estate,  if  it  be  evidenced  by  some  writing.3 

§  289.   Continued  —  Notice  to  subsequent  purchasers. — 

If  the  subsequent  purchaser  for  value  has  received  no  notice 
of  the  existence  of  this  equitable  mortgage,  it  cannot  be  en- 
forced against  him  and  the  land  in  his  hands.  What  will 
be  sufficient  notice  to  such  a -purchaser  would  depend  upon 
the  circumstances  of  each  particular  case.  In  England, 
where  there  is  no  registration  law,  and  the  purchaser  is 
accustomed  to  depend  upon  the  original  title  deeds  in  inves- 
tigating the  title  to  lands,  the  absence  of  these  deeds  or  of 
any  of  them  would  constitute  sufficient  notice  to  put  the 
purchaser  on  his  inquiry.  But  the  burden  of  proof  is  on 
the    equitable    mortgagee  to  show   that  the  purchaser  has 

1  Norris  v.  Wilkinson,  12  Ves.  162 ;  Bozon  v.  Williams,  3  Y.  &  J.  150 ; 
James  v.  Rice,  23  Eng.  L.  &  E.  567 ;  Chapman  v.  Chapman,  3  Eng.  L.  &  E. 
70 ;  s.  c,  13  Beav.  308 ;  Ex  parte  Bruce,  1  Rose,  374 ;  Ex  parte  Wright,  19  Ves. 
258 ;  Ex  parte  Langston,  17  Ves.  227 ;  Lucas  v.  Darren,  7  Taunt.  278 ;  Mande- 
ville  v.  Welch,  5  Wheat.  277 ;  Story's  Eq.  Jur.,  sect.  1020.  If  the  intention 
is  declared  by  a  memorandum  in  writing,  it  cannot  be  controlled  by  parol  evi- 
dence.   Ex  parte,  Coombe,  17  Ves.  369;  Baynard  v.  Woolley,  20  Beav.  583. 

2  Ex  parte  Chippendale,  2  Mont.  &  A.  299;  Ex  parte,  Wetherall,  11  Ves. 
398;  Lacon  v.  Allen,  3  Drew.  582;  Roberts  v.  Crofty,  21  Beav.  253;  s.  c,  2 
De  G.  &  J.  1. 

3  Edwards,  ex  parte,  1  Deac.  611 ;  4  Kent's  Com.  151. 

194 


CH.  X.]  MORTGAGES.  §    2*W 

received  notice  of  the  mortgage.1  In  this  country,  how- 
ever,  where  all  deeds  of  conveyance  are  required  to  be 
recorded,  in  order  to  give  constructive  notice  to  subse- 
quent purchasers,  actual  notice  of  the  deposit  of  the  deeds 
must  be  brought  to  such  purchasers,  in  order  to  bind 
the  land  in  their  hands.  The  purchaser  in  this  country  is 
not  required  to  look  beyond  the  record  for  the  evidences 
of  title.2 

§  290.  Continued. —  Their  recognition  in  this  country. — 

The  equitable  mortgage  by  deposit  of  title  deeds  is  recog- 
nized in  some  of  the  States  of  this  country,  but  in  view  of 
the  general  prevalence  of  the  recording  law,  it  is  at  best  a 
very  inefficacious  kind  of  security.  It  can  never  be  relied 
upon,  and  is  rarely,  if  ever  at  the  present  day,  met  with  in 
practice.  Its  value  as  a  security  is  destroyed,  as  soon  as 
the  land  has  been  sold  or  mortgaged  to  one  having  no  actual 
notice  of  the  deposit.  And  it  being  a  purely  equitable  in- 
terest, not  even  an  equitable  estate,  the  mortgagee  cannot 
have  any  instrument  of  notice  recorded  for  the  purpose  of 
giving  constructive  notice  of  its  existence.  The  mortgage 
is,  however,  recognized  in  Maine,  Rhode  Island,  New  York, 
New  Jersey,  South  Carolina,  Georgia,  Wisconsin,  and  in 
the  United  States  Courts.3     While  in  Pennsylvania,  Ver- 

1  Herrick  v.  Atwood,  25  Beav.  212;  Colyer  v.  Finch,  5  H.  L.  Cas.  924; 
Ex  parte  Hardy,  2  Deac.  &  C.  363;  Hiern  v.  Mill,  13  Ves.  114;  Hewitt  v. 
Loosemore,  9  Eng.  L.  &  E.  35;  Head  v.  Egerton,  3  P.  Wis.  279;  Adam's,  Eq. 
123;  Story's  Eq.  Jur.,  sect.  1020;  Jones,  Mortg.,  sect.  179. 

2  Story's  Eq.  Jur.,  sect.  1020;  Jones,  Mortg.,  sect.  179;  Hall  v.  McDuff,  24 
Me.  311 ;  Whitworth  v.  Gangain,  3  Hare,  416;  Berry  v.  Mutual  Ins.  Co.,  2 
Johns.  Ch.  604;  Luch's  Appeal,  44  Pa.  St.  522;  Edwards  v.  Trumbull,  50  Pa. 
St.  612 ;  Probasco  v.  Johnson,  2  Disney,  96 ;  Walker,  Am.  Law.  315. 

3  Hall  v.  McDuff,  24  Me.  311 ;  Hackett  v.  Reynolds,  4  R.  I.  512  ;  Rockwell 
v.  Hobby,  2  Sandf.  Ch.  9;  Robinson  v.  Urquhart,  1  Deas.  523;  Stoddard  v. 
Hart,  23  N.  Y.  661  ;  Mounce  v.  Byars,  16  Ga.  469;  Gothard  v.  Flynn,  Miss. 
58 ;  Williams  v.  Stratton,  10  Smed.  &  M.  118;  Welsh  v.  Usher,  2  Hill  (S.  C.) 
166-170;  Jarvis  v.  Dutch er,  16  WiS.  307;  Mandeville  v.  Welch,  5  Wheat. 
277 ;  Chase  v.  Peck,  21  N.  Y.  58i. 

195 


§    292  MORTGAGES.  [PART    I. 

mont,  Kentucky,  Ohio  and  Tennessee,  the  doctrine  has  been 
repudiated.1 

§  291 .  Continued.  —  Foreclosure.  —  Since  the  mortgage 
by  deposit  of  title  deeds  is  only  an  equitable  lien,  it  can  be  en- 
forced only  in  a  court  of  equity,  and  it  is  a  matter  of  doubt 
in  the  English  courts,  whether  the  decree  should  be  for  fore- 
closure, or  simply  direct  a  sale  of  the  premises,  and  the  ap- 
plication of  the  proceeds  to  the  liquidation  of  the  debt.  But 
the  latter  English  cases  hold  that  the  mortg-ao-ee  of  such  a 
mortgage  is  possessed  of  the  same  rights  of  foreclosure  as 
any  other  mortgagee.2 

§  292.  Vendor's  lien.  —  This  is  also  an  equitable  lien 
recognized  in  favor  of  the  vendor  as  a  security  for  the 
purchase-money.  It  is  founded  on  the  equitable  theory 
that,  until  the  payment  of  the  purchase-money,  the 
vendee  holds  the  land  as  trustee  of  the  vendor  for  the 
purpose  of  a  security.  No  agreement  is  necessary  for 
its  creation;  it  is  presumed  to  exist,  until  the  contrary 
is    shown.3      This    lien    has     been     generally    recognized 

Shitz  v.  Dieffenback,  3  Pa.  St.  233 ;  Bowers  v.  Oyster,  3  Pa.  St.  233 ; 
Strauss'  Appeal,  49  Pa.  St.  258 ;  Kauffelt  v.  Bower,  7  Serg.  &  R.  64 ;  Bicknell 
v.  Bicknell,  31  Vt.  498 ;  Van  Meter  v.  McFaddin,  8  B.  Mon.  438 ;  Meador  v. 
Meador,  3  Heisk.  5i32 ;  Probasco  v.  Johnson,  2  Disney,  96.  But  in 
Pennsylvania,  if  the  deposit  is  accompanied  by  an  instrument,  declaring  the 
purpose  of  the  deposit,  it  will  be  a  good,  equitable  mortgage.  Luch's  Appeal, 
44  Pa.  St.  522;  Edwards  v.  Trumbull,  56  Pa.  St.  512. 

2  Adams  Eq.  125;  Pain  v.  Smith,  2  M.&K.  417;  Parker  y.Housefield,  Id. 
419;  Brocklehurst  v.  Jessop,  7  Sim.  438;  Moores  v.  Choat,  8  Id.  508;  Price 
v.  Carver,  3  M.  &  C.  157 ;  Lister  v.  Turner,  5  Hare,  281 ;  Tuckley  v.  Thomp- 
son, 1  Johns.  &  H.  126;  James  v.  James,  L.  R.  16  Eq.  153;  Redmagne  v. 
Forster,  L.  R.  2  Eq.  467.  In  Jarvis  v.  Dutcher,  16  Wis.  307,  it  was  held  that 
the  decree  should  be  for  a  sale  of  the  premises.  Otherwise  the  question  does 
not  seem  to  have  been  passed  upon  by  the  courts  of  this  country. 

3  Walker  Am.  Law,  315;  Mackreth  v.  Symmons,  15  Ves.  339;  Chapman 
v.  Tanner,  1  Vern.  267;  Blackburn  v.  Gregson,  1  Bro.  C.  C.  420;  Payne  v. 
Atterbury,  Harr.  (Mich.)  414;  Warren  v.  Fenn,  28  Barb.  834;  Wilson  v. 
Lyon,  51   111.   166;  Truebody  v.  Jacobson,  2  Cal.  269;  Dodge  v.  Evans,  48 

19G 


OH.  X.]  MORTGAGES.  §    292 

in  the  states  of  this  country,  but  has  been  denied  in  some.1 
The  decisions  differ  as  to  details,  but  agree  in  respect  to 
the  general  features  of  such  a  lien.     The  vendor's  iien  is 

Miss.  570;  Schnebly  v.  Ragan,  7  Gii.&  J.  120;  Ahrend  v.  Odiorne,  11?  Mast. 
266;  Kauffelt  v.  Bower,  7  Serg.  &  R.  64;  Story's  Eq.  Jut.,  sect.  1217. 

1  Recognized  in  Alabama :  Gordon  v.  Bell,  50  Ala.  213 ;  Wood  v.  Sullen.* . 
44  Ala.  686.     In  Arkansas  :  Shall  v.  Ciscoe",  18  Ark.  142 ;  Lavender  v.  Abbott, 
30  Ark.  192.     California:  Salmon  v.  Hoffman,  2  Cal.  138;  Gallagher  v.  Mars, 
50  Cal.  23  ;  Qolorada :  Francis  v.  Wells,  2  Cal.  660;  Dist.  of  Columbia:  Ford  v. 
Smith,  1  McArthur,  592,     Florida:    Bradford  v.  Marvin,  2  Fla.  463.     Illinois: 
Dyer  v.  Martin,  4  Scam   148;  Keith  v.  Horner,  42  111.  524 ;  Kirkham  v-  Boston, 
67  111.  599 ;  Moshier  v.  Meek,  80  111.  79.    Indiana :  Deibler  v.  Barwick,  4  Blackf. 
339;  Yaryan  v.  Shriner,  26  Ind.  364.     Iowa:   Grapengether  v.  Fejervary,  9 
Iowa,  163;  Johnson  v.  McGrew,  42  Iowa,  555;  see  Rev.  Stat.  Iowa  (1873), 
sect.  1940.     Kentucky :   Thornton  v.  Knox,  6  B.  Mon.  74 ;  Tiernan  v.  Thur- 
man,  14  B.  Mon.  277.    Maryland:  Magruder  v.  Peter,  11  Gill  &  J.  217;  Carr 
v.  Hobbs,  11  Md.  285.    Michigan  :  Carroll  v.  Van  Rensselear,  Harr.  (Mich.)  225 
Payne   v.  Avery,   21  Mich.  524.     Minnesota:  Silby  v.  Stanley,  4  Minn.  C5 
Duke  v.   Balme,  16  Minn.  306.     Mississippi:  Dodge  v.  Evans,  43  Miss.  570 
Davidson  v.  Allen,   36  Miss.  419.     Missouri :  March  v.  Turner,  4  Mo.  253 
Delassus  v.  Poston,  19  Mo.  425;  Pratt  v.  Clark,  57  Mo.  189.    New  Jersey 
Van  Doren  v.  Todd,  2  Green  (N.  J.)  397 ;  Carlies  v.  Howland,  26  N.  J.  Eq. 
311.    New  York:  Warner  v.  Van  Alstyne,  3  Paige,  513;  Chase  v.  Peck,  21 
N.  Y.,  581;   Stafford  v.  Van  Rensselaer,  9  Cow.   316;  Garson  v.   Green,    1 
Johns.  Ch.  308;  Smith  v.  Smith,  9  Abb.  Pr.  (n.  s.)  420.     Ohio:  Williams  v. 
Roberts,  5  Ohio,  35;  Anketel  v.  Converse,  17  Ohio  St.  11.    Oregon:  Pease  v. 
Kelly,  3  Oreg.  417.     Tennessee:   Eskridge  v.  McClure,  2  Yerg.  84;  Ross  v. 
Whitson,  6  Yerg.  50.     Texas :  Briscoe  v.  Bronaugh,  1  Texas  326  ;  Yarborougb 
v.  Wood,  42  Texas,  91.    Wisconsin :  Tobey  v.  McAllister,  9  Wis.  643 ;  Williard 
v.  Reas,  26  Wis.  540.     Denied  and  repudiated  in  Kansas  :  Simpson  v.  Mundee, 
3  Kansas,  172;  Smith  v. Rowland,  13  Kansas  245.     Maine:  Gilman  v.  Brown, 
1  Mason,  192;   Philbrook  v.  Delano,  29  Me.  410.     Massachusetts:  Wrigbt  v. 
Dame,  5  Mete.  603;  Ahrens  v.  Odiorne,  118  Mass.   261.    Nortb  Carolina: 
Womble  v.  Battle,  3  Ired.  Eq.  182 ;  Cameron  v.  Mason,  7  Ired.  Eq.  180.     Penn- 
sylvania: Kauffelt  v.  Bower,  Serg.  &  R.  64;   Zentmeyer  v.  Mittower,  5  Pa.  St. 
403;  Stephen's  Appeal,  38  Pa.  St.  9.    South  CaTOiit.a:  Wragg  v.  Compt.  Gen.,  2 
Desau.  509.    Left  in  doubt  in  Connecticut:  Atwood  v.  Vincent,  17  Conn.  575 ; 
Watson  v.  Wells,  5  Conn.  468;   Chapman  v.  Beardsley,  31  Conn.  115.     New 
Hampshire  :  Arlin  v.  Brown,  44  N.  H.  102.     Rhode  Island :  Perry  v.  Grant,  10 
R.  I.  334.     While  in  Georgia,   Vermont,   Virginia,  and  West  Virginia,  al- 
though upheld  judicially,  it  is  now  abolished  by  statute,  except  that  in  the 
last  two  States,  it  may  be  reserved  on  tbe  face  of  the  deed  of  conveyance. 
Ga.Code,  1873,  sect.  1997;   Jones  v.  Jones,  56  Ga.  325;  Mounce  v.  Byars,  16 
Ga.  469 ;   Stat,  of  1851  (Vt.),  ch  47 ;  Manly  v.  Slason,  21  Vt.  271.     Code  Va., 

197 


§    292  MORTGAGES.  [PART    I. 

binding  upon  the  vendee,  and  all  persons  claiming  under 
him  who  had  notice  of  the  lien  or  who  are  not  purchasers 
for  value.  A  volunteer  to  whom  the  land  is  conveyed  with- 
out consideration,  a  widow  with  her  dower,  and  the  heirs 
and  devisees,  cannot  plead  the  want  of  notice  as  a  defence.1 
The  decisions,  however,  are  not  uniform  in  determining  to 
what  extent  the  vendor's  lien  will  be  enforced  against  cred- 
itors of  the  purchaser,  who  are  not  charged  with  notice- 
It  is  certain  that  it  will  prevail  against  an  assignment  for 
the  benefit  of  creditors,  if  the  vendor  enforces  his  lien  by 
filing  a  bill  in  equity,  before  the  assignee  executes  the  trust.2 
But  where  the  conveyance  is  direct  to  the  creditor,  or  the 
land  is  attached  under  levy  of  execution  issued  upon  a  judg- 
ment against  the  vendee,  the  courts  generally  hold  that  the 
lien  will  not  prevail.3  In  respect  to  what  constitutes  notice 
of  the  vendor's  lien,  it  may  be   stated  that   any    notice, 

1873,  ch.  115,  sect.  1 ;  Wade  v.  Greenwood,  2  Robt.  475.  W.  Va.  Code,  1870, 
ch.  75,  sect.  1.  See  als ■>  Bayley  v.  Greenleaf,  7  Wheat.  46;  Chilton  v.  Brai- 
den,  2  Black,  458;  McLean  v.  McLean,  10  Pet.  625;  Gil  man  v.  Brown,  4 
Wheat.  254. 

1  Pintard  v.  Goodloe,  1  Hempst.  527;  Webb  v.  Robinson,  14  Ga.  16;  2. 
Garson  v.  Green,  1  Johns.  Ch.  308;  Amory  v.  Reilley,  9  Inch  490;  Upshaw  p. 
Hargrove,  8  Smed.  &  M.  286  ;  Fisher  v.  Johnson,  5  Ind.  492  ;  Crane  v.  Palmer, 
8  Blackf.  12 ;  Williams  v.  Wood,  1  Humph.  408  ;  Besland  v.  Hewitt,  11  Smed. 
&M.  164;  Nazareth  v.  Lowe,  1  B.  Mon.  257;  Ellicott  v.  Welch,  2  Bland, 
242;  Warner  v.  Van  Alstyne,  3  Paige  Ch.  513;  Newton  v.  McLean,  41  Barb. 
285;  Cole  v.  Scott,  2  Wash.  (Va.)  141;  Bayley  v.  Greenleaf,  7  Wheat.  46; 
Duval  v.  Bibb,  4  Hen.  &  M.  113 ;  Shirley  v.  Sugar  Refin.  Co.,  2  Edw.  Ch.  505; 
McHendry  v.  Reilly,  13  Cal.  75. 

2  Brown  v.  Vanlier,  7  Humph.  239:  Shirley  v.  Sugar  Refinery,  2  Edw.  Ch. 
505;  Repp  v.  Repp,  12  Gill  &  J.  341;  Truebody  v.  Jacobson,  2  Cal.  269; 
Pearce  v.  Foreman,  29  Ark.  563 ;  Green  v.  Demoss,  10  Humph.  371 ;  Walton 
v.  Hargroves,  42  Miss.  18';  Warren  v.  Fenn,  28  Barb.  333 ;  Corlies  v.  Howland, 
26  N.  J.  Eq.  311 ;  Bowles  v.  Rogers,  6  Ves.  95. 

3  Bayley  v.  Greenleaf,  7  Wheat.  46 ;  Aldridge  v.  Dunn,  7  Blackf.  249 ; 
Taylor  v.  Baldwin,  10  Barb.  626;  Webb  v.  Robinson,  14  Ga.  216;  Gaun  v. 
Chester,  5  Yerg.  205;  Roberts  v.  Rose,  2  Humph.  145;  Roberts  v.  Salisbury, 
3  Gill  &  J.  425 ;  Cook  v.  Banker,  50  N.  Y.  655 ;  Johnson  v.  Cawthorne,  1  Dev. 
&  B.  Eq.  32 ;  Adams  v.  Buchanan  ,  49  Mo.  64 ;  Allen  v.  Loring,  34  Iowa,  499 ; 
Porter  v.  City  of  Dubuque,  20  Iowa,  440. 

198 


CH.  X.]  MORTGAGES.  §    293 

which  is  sufficient  to  put  a  reasonable  man  upon  his 
inquiry  will  charge  the  purchaser  with  knowledge  of 
the  existence  of  the  lien.  Thus  the  vendor's  possession, 
or  a  recital  in  the  deed  that  the  consideration  has  not  been 
paid,  would  be  sufficient  notice  to  bind  the  land  in  the  pur- 
chaser's hands.1 

§  293.   Continued  —  Discharge  or  waiver  of  the  lien. — 

Since  this  lien  is  raised  in  favor  of  the  vendor  on  the  theory 
that  he  is  without  remedy  in  a  court  of  law,  and  the  lien  is 
necessary  to  prevent  his  incurring  the  loss  of  both  the  land 
and  the  purchase-money  ;  if  the  vendor  shows  by  any  act 
that  he  does  not  rely  upon  the  vendor's  lien  for  protection, 
the  land  will  vest  in  the  vendee,  discharged  of  the  lien. 
The  reservation  of  the  lien  depends  upon  the  intention  of 
the  parties.  In  the  absence  of  any  evidence  to  the  contrary, 
the  law  presumes  that  it  was  their  intention  to  reserve  the 
lien.  This  presumption  may,  however,  be  rebutted.  An 
express  agreement,  that  the  lien  shall  not  be  reserved,  will, 
of  course,  have  that  effect  ;  and  the  general  rule  in  all  other 
cases  is,  that  nothing  less  than  the  acceptance  of  some  other 
security  will  constitute  a  waiver  of  the  lien.  Such  would 
be  a  mortgage  or  pledge  of  the  same  or  other  property,  or 
a  note  with  surety  or  indorser.  The  execution  of  an  invalid 
mortgage  on  the  same  land  would  not  discharge  the  lien. 
Nor  would  a  mere  change  in  the  form  of  the  vendee's  in- 

1  McRimmons  v.  Martin,  14  Texas  318;  Tiernan  v.  Thurman,  14  B.  Mon. 
277;  Honore  v.  Bakewell,  6  B.  Mon.  67;  Daughady  v.  Paine,  6  Minn.  452; 
Hopkins  v.  Garrard,  6  B.  Mon.  66 ;  Thorpe  v.  Dunlap,  4  Heisk.  674 ;  Briscoe 
v.  Bronaugh,  1  Tex.  326;  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457;  Hamilton  v. 
Fowlkes,  16  Ark.  340;  Manly  v.  Glason,  21  Vt.  271;  Wilson  v.  Lyon,  51  111. 
166;  Baurn  v.  Grisby,  21  Cal.  176;  Thornton  v.  Knox,  6  B.  Mon.  74;  "Wood- 
ward v.  Woodward,  7  B.  Mon.  116;  Kilpatrick  v.  Kilpatrick,  23  Miss.  124; 
Parker  v.  Foy,  43  Miss.  260;  McAlpine  v.  Burnett,  23  Texas,  649;  Melross  v. 
Scott,  18  Ind.  250;  Mounce  v.  Byars,  11  Ga.  180;  Cordova  v.  Hood,  17  Wall. 
1 ;  Masich  v.  Shearer,  49  Ala.  226. 

199 


§    294  MORTGAGES.  [PAET    I. 

debtedness,  such  as  the  acceptance  of  the  vendee's  bond, 
note,  or  check.1 

§   294.   Continued  —  In    whose    favor    raised.  —  It    is 

doubtful  if  any  one  but  the  vendor  and  his  heirs  can  claim 
the  benefit  of  this  lien.  It  certainly  does  not  enure  to  a 
third  person,  who  pays  the  consideration  at  the  request  of 
the  purchaser.2  And  whether  it  is  assignable  with  the  ven- 
dor's claim  for  the  purchase-money  is  a  matter  of  great 
doubt.  There  are  decisions  in  support  of  both  positions, 
but  the  better  opinion  is,  that  the  lien  is  personal  to  the 
vendor  and  cannot  be  assigned,  unless  the  right  is  expressly 
reserved  by  the  parties,  when  it  will  have  all  the  character- 
istics of  an  express  lien,  and  will  pass  with  the  assignment.3 

1  Honore  v.  Bakewell,  6  B.  Mon.  67;  Mims  v.  Macon  and  West.  R.  R.  Co., 
3  Ga.  333 ;  Mimms  v.  Lockett,  23  Ga.  237 ;  Winter  v.  Anson,  3  Russ.  488 ; 
Teed  v.  Carruthers,  2  Younge  &  C.  Ch.  31 ;  Hughes  v.  Kearney,  1  Sch.  &  L. 
136;  Dubois  v.  Hull,  43  Barb.  25;  Richardson  v.  Ridgely,  8  Gill  &  J.  87 ; 
White  v.  Dougherty,  1  Mart.  &  Y.  309;  Young  v.  Wood,  11  B.  Mon.  123; 
Manly  v.  Slason,  21  Vt.  277;  Tobey  v.  McAllister,  9  Wis.  463;  Mattix  v. 
Weand,  19  Ind.  151;  Hummer  v.  Schott,  21  Md.  311;  Hadley  v.  Pickett,  2"> 
Ind.  452;  Boon  v.  Murphy,  6  Blackf.  272;  Williams  U.Roberts,  5  Ohio,  35; 
Mayham  v.  Coombs,  14  Ohio,  428;  Wilson  v.  Graham,  5  Munf.  297;  Foster 
v.  Trustees,  3  Ala.  302;  Marshall  v.  Christmas,  3  Humph.  616;  Conover  v. 
Warner,  1  Gilm.  493 ;  Gilman  v.  Brown,  1  Mason,  191 ;  s.  c,  4  Wheat.  255 ;  Bur- 
ger v.  Potter,  32  111.  66 ;  Lagow  v.  Badollett,  1  Blackf.  416 ;  Phelps  v.  Conover, 
25  111.  314;  Campbell  v.  Baldwin,  2  Humph.  24S;  Baum  v.  GrigSby,  21  Cal. 
175;  Cowl  v.  Varnum,  37  111.  181;  Richards  v.  Learning,  27  111.  137;  Cordova 
v.  Hood,  17  Wall.  1 ;  Anthony  v.  Smith,  9  Humph.  508;  Hurlock  v.  Smith,  39 
Wis.  436;  Clark  v.  Hunt,  3  J.  J.  Marsh.  553;  Phillips  v.  Saunderson,  1  Smed. 
&  M.  462 ;  Redford  v.  Gibson,  12  Leigh,  332 ;  Adams  v.  Buchanan,  49  Mo.  64 ; 
Dudley  v.  Dickson,  14  N.  J.  Eq.  252;  Durette  v.  Briggs,  47  Mo.  356;  Kirk- 
ham  v.  Boston,  67  111.  599;  Fish  v.  Howland,  1  Paige,  20;  Vail  v.  Foster,  4 
N.  Y.  312;  Morri  v.  Pate,  31  Mo.  315;  Linville  v.  Savage,  58  Mo.  248;  Hare 
v.  Van  Deusen,  32  Barb.  92;  Mackreth  v.  Symmons,  15  Ves.  342;  Austen  v. 
Halsey,  6  Ves.  sr.  483. 

2  Stansell  v.  Roberts,  3  Ohio,  148 ;  Skaggs  v.  Nelson,  25  Miss.  88 ;  Crane 
B.Caldwell,  14  111.468;  Nolte's  Appeal,  45  Pa.  St.  361;  Brown  v.  Budd,  2 
Ind.  442. 

3  It  is  held  to  be  non-assignable  in  Arkansas,  California,  Georgia,  Illinois, 
Iowa,  Maryland,  Mississippi,  Missouri,  New  York,  North  Carolina,  Ohio,  Ten- 

200 


CH.  X.]  MORTGAGES.  §    295 

§  295.  Vendee's  lien.  —  Where  the  vendee  has  paid  any 
part  of  the  purchase-money  on  the  faith  of  the  contract  of 
sale  before  a  conveyance  has  been  made  to  him,  equity  gives 
him  a  lien  upon  the  title  of  the  vendor  for  the  amount  so 
advanced,  which  has  all  the  characteristics  of  the  vendor's 
lien,  and  is  enforceable  in  the  same  way  against  the  vendor 
and  all  his  privies  who  have  notice.1     Both  the  vendor's 

nessee.  Carlton  v.  Buckner,  28  Ark.  66 ;  Hutton  v.  Moore,  26  Ark.  396  ;  Baum 
v.  Grigsby,  21  Cal.  172;  Ross  v.  Heintzen,  36  Cal.  313;  Webb  v.  Robinson, 

14  Ga.  216;  Wellborn  v.  Williams,  9  Ga.  86;  Keith  v.  Horner,  32  111.  524; 
Dickenson  v.  Chase,  1  Morris,  492;  Crow  v.  Vance,  4  Iowa,  436;  Moshier  v. 
Meek,  80  111.  79;  Dixon  v.  Dixon,  1  Md.  Ch.  220;  Inglehart  v.  Armiger,  1 
Cland,  519;  Pitts  v.  Parker,  44  Miss.  247;  Walker  v.  Williams.  30  Miss. 
165 ;  Adams  v.  Cowherd,  30  Mo.  458  ;  White  v.  Williams,  1  Paige,  502 ;  Smith  v. 
Smith,  9  Abb.  Pr.  (n.  s.)  420;  Green  v.  Crockett,  2  Dev.  &  B.  Eq.  390;  Jack- 
man  v.  Hallock,  1  Ohio,  318;  Brush  v.  Kinsley,  14  Ohio,  20;  Thorpe  v.  Dun- 
lap,  4  Heisk.  674;  Green  v.  DeMoss,  10  Humph.  371;  Stratton  v.  Gold,  40 
Miss.  780;  Hallock  v.  Smith,  3  Barb.  267;  Graham  v.  McCampbell,  Meigs, 
o2;  Tanner  v.  Hicks,  4  Smed.  &  M.  294;  Norvell  v.  Johnson,  5  Humph.  489; 
Eskridge  v.  McClure,  2  Yerg.  84;  Gann  v.  Chester,  5  Yerg.  205;  Sheratz  v. 
Nicodemus,  7  Yerg.  9;  Briggs  v.  Hill,  6  How.  (Miss.)  362;  Moreton  v.  Harri- 
son, 1  Bland,  491 ;  Shall  v.  Biscoe,  18  Ark.  162.  While  in  Alabama,  Indiana, 
Kentucky,  and  Texas,  the  lien  is  held  to  be  assignable.  Wells  v.  Morrow,  38 
Ala.  125;  Griggsby  v.  Hair,  25  Ala.  327;  Fisher  v.  Johnson,  5  Ind.  492; 
Nichols  v.  Glover,  41  Ind.  24;  Honore  v.  Bakewell,  6  B.  Mon.  67;  Ripperdort 
v.  Cozine,  8  B.  Mon.  465 ;  White  v.  Downs,  40  Texas,  225 ;  Moore  v.  Raymond, 

15  Texas,  554.  And  in  some  of  the  States,  where  it  is  generally  held  that  the 
lien  is  not  assignable  with  the  debt,  a  distinction  is  made  between  a  transfer 
by  sale  of  the  debt,  and  a  deposit  of  the  debt  as  security  for  the  vendor's  in- 
debtedness. In  the  latter  case  it  is  held  that  the  pledgee  may  assert  the  ven- 
dor's lien  in  his  own  behalf.  Carlton  v.  Buckner,  28  Ark.  66;  Hallock  v. 
Smith,  3  Barb.  272;  Crowley  v.  Riggs,  24  Ark.  563.  The  assignment  of  the 
note  or  other  instrument  of  indebtedness  of  the  vendee  does  not  discharge  the 
lien  although  the  lien  does  not  pass  to  the  assignee,  as  long  as  the  vendor  is 
liable  as  indorser  or  guarantor.  He  may  enforce  it  for  his  own  benefit.  Kelly 
v.  Payne,  18  Ala.  371 ;  White  v.  Williams,  1  Paige,  502;  Lindsey  v.  Bates, 
42  Miss.  397;  Turner  v.  Horner,  29  Ark.  440;  Smith  v.  Smith,  9  Abb.  Pr. 
(n.  s.)  420.  In  Missouri  it  is  held  that  the  assignment  of  note  for  purchase 
money  will  pass  the  vendor's  lien  to  the  assignee,  where  the  vendor  retains  the 
legal  title,  aud  has  only  conditioned  for  the  execution  of  a  deed  upon  payment 
of  the  purchase  money.     Adams  v.  Cowherd,  30  Mo.  458. 

1  Burgess  v.  Wheate,  1  W.  Bl.  150;  Mackreth  v.  Symmons,   15  Ves.  352; 
Payne  v.  Atterbury,  Harr.  Ch.  414;  ^Etna  Ins.  Co.  v.  Tyler,   16   Wend.  385; 

201 


§    296  MORTGAGES.  [PART    I. 

and  the  vendee's  liens  are  enforced  by  a  bill  in  equity;  and 
if  the  debt  cannot  be  liquidated  in  any  other  way,  the  court 
will  order  the  property  to  be  sold,  or  so  much  of  it  as  is 
necessary,  and  the  proceeds  of  sale  applied  to  the  satisfac- 
tion of  the  debt.  But  in  order  that  the  property  might  be 
subjected  to  the  lien,  the  action  must  be  brought  directly 
for  that  purpose.  It  cannot  be  enforced  in  any  collateral 
suit.1 

§  296.  Mortgage  at  common  law. — A  common  law 
mortgage  is  a  conveyance  of  an  estate  in  lands,  upon  condi- 
tion that  it  will  be  defeated  by  the  payment  of  the  debt  or 
the  performance  of  the  obligation,  to  secure  which  the  con- 
veyance was  made.  The  conveyance  is  a  security,  and  for 
that  purpose  the  mortgagee  is  given  a  defeasible  estate, 
which  is  to  become  absolute  upon  the  failure  of  the  mort- 
gagor to  perform  the  condition.  It  is  a  species  of  estate 
upon  condition  subsequent,  and  grew  out  of  the  doctrine 

Lowell  v.  Middlesex  Ins.  Co.,  8  Cush.  127;  Shirley  v.  Shirley,  7  Blackf.  452; 
Chase  v.  Peck,  21  N.  Y.  585 ;  Hope  v.  Stone,  10  Minn.  151 ;  Tafft  v.  Kessel,  16 
Wis.  273 ;  Wickman  v.  Robinson,  14  Wis.  493 ;  Cooper  v.  Merritt,  30  Ark.  686 ; 
Stewart  v.  Wood,  63  Mo.  252 ;  Brown  v.  East,  5  Mon.  407 ;  Lane  v.  Ludlow, 
■6  Paige,  316,  note;  2  Story  Eq.  Jur.,  sect.  1216. 

1  Wilson  v.  Davisson,  2  Robt.  384;  Mullikin  v.  Mullikin,  1  Bland,  538; 
Eskridge  v.  McClure,  2  Yerg.  84;  Clark  v.  Bell,  2  B.  Mon.  1;  Williams  v. 
Young,  17  Cal.  406;  Converse  v.  Blumrick,  14  Mich.  124;  Payne  v.  Harrell, 
40  Miss.  498 ;  Clark  v.  Hunt,  3  J.  J.  Marsh.  558 ;  Jones  v.  Conde,  6  Johns. 
Ch.  77 ;  Ely  v.  Ely,  6  Gray,  439 ;  Codwise  v.  Taylor,  4  Sneed,  346 ;  Burger  v. 
Potter,  32  111.  66;  Milner  v.  Ramsey,  48  Ala.  287;  Emison  v.  Risque,  9  Bush, 
24;  Edwards  v.  Edwards,  5  Heisk.  123.  In  some  of  the  States,  the  lien-holder 
must  exhaust  his  remedy  at  law  before  he  can  file  a  suit  in  equity  to  enforce 
his  lien.  Roper  v.  McCook,  7  Ala.  318;  Battorf  v.  Conner,  1  Blackf.  287; 
Ford  v.  Smith,  1  McArthur,  592 ;  Pratt  v.  VanWyck,  5  Gill  &  J.  495.  In 
Maryland  it  has  now  been  changed  by  statute.  Gen.  Laws,  Md.  (1860),  p.  99. 
And  in  other  States,  the  vendor  or  vendee  may  enforce  his  lien  although  he 
may  have  a  complete  remedy  at  law.  Bradley  v.  Bosley,  1  Barb.  Ch.  125 ; 
Dubois  v.  Hull,  43  Barb.  26;  Stewart  v.  Caldwell,  54  Mo.  536;  Pratt  v.  Clark, 
57  Mo.  189;  Campbell  v.  Roach,  45  Ala.  667;  Richardson  v.  Baker,  5  J.  J. 
Marsh.  323. 

202 


CH.  X.]  MORTGAGES.  §    298 

of  those  estates.1  The  common-law  mortgage  is  to  be  dis- 
tinguished from  two  kinds  of  securities,  which  once  were 
used  quite  extensively  in  Great  Britain,  viz. :  vivum  vadium 
and  the  Welsh  mortgage. 

§  297.  Vivuni  vadium. —  This  was  also  an  estate  granted 
to  the  creditor  for  the  purpose  of  securing  the  payment  of 
a  debt.     But  it  is  to  be  distinguished  from  the  mortgage  or 

©  ©      © 

vadium  mortuum,  in  that  the  debt  was  to  be  satisfied  out  of 
the  rents  and  profits  of  the  estate.  The  grantee  in  the 
vadium  vivum  invariably  took  possession  of  the  premises. 
Transfer  of  possession  was  a  necessary  incident,  whereas, 
as  we  shall  presently  have  occasion  to  observe,  the  common- 
law  mortgage  does  not  require  a  change  of  possession, 
although  it  may  take  place.  In  the  mortgage,  also,  if  the 
mortgagor  fails  to  discharge  his  obligation,  the  title  becomes 

©     ©  ©  ©  7 

absolute  in  the  mortgagor,  while  in  the  vadium  vivum  it 
never  does,  but  reverts  to  the  grantor,  so  soon  as  the 
grantee  shall  have  paid  himself  out  of  the  rents  and  profits 
of  the  estate.2 

§  298.  Welsh  mortgage.  —  This  mortgage  was  one,  in 
which  the  distinguishing  feature  was,  that  the  mortgagee 
always  entered  into  possession  and  appropriated  the  rents 
and  profits  of  the  estate  in  payment  of  interest  on  the  debt. 
The  mortgagee  could  neither  compel  the  mortgagor  to  pay 
the  principal,  nor  foreclose  the  mortgage  and  acquire  the 
absolute  estate.  The  mortgagor  could  pay  or  not  as  he 
chose,  but  until  payment  of  the  principal,  he  could  not  ex- 
ercise any  of  the  rights  of  an  owner  over  the  land.3     Both  the 

1  2  Washb.  on  Real  Prop.  34 ;  4  Kent's  Com.  136 ;  Jones  on  Mortg.,  sect. 

4;  "Williams  on  Real  Prop.  422;  Erskine  v.  Townsend,  2  Mass.  493;  Mitchell 

v.  Burnham,  44  Me.  299 ;    Wing  v.  Cooper,  37  Vt.   179 ;   Lund  v.  Lund,  1 

N.  H.  39. 

2  Jones  on  Mortg.,  sect.  2  ;  4  Kent's  Com.  137 ;  2  Bla.  Com.  157 ;  Co.  Lit.  5.20 

3  4  Kent's  Com.  137  ;  Jones  on  Mortg.,  sect.  3 ;  Howell  v.  Price,  1  P.  Wins. 
291 ;  Lonquet  v.  Scawen,  1  Ves.  sr.  402 ;  2  Washb.  on  Real  Prop.  37. 

203 


§    299  MORTGAGES,  [PART    I* 

vadium  vivum  and  the  Welsh  mortgage  have  fallen  into  dis- 
use, and  they  are  mentioned  only  as  curiosities  in  legal 
literature. 

§  299.  Equity  of  redemption. — If  the  mortgagor  in  a 
common  law  mortgage  failed  to  perform  the  condition  at 
the  time  stipulated,  the  estate  became  absolute  in  the  mort- 
gagee, even  though  the  estate  may  have  been  worth  much 
more  than  the  mortgage  debt.1  There  was  no  remedy  by 
which  the  mortgagor  could  enforce  the  acceptance  of  pay- 
ment after  the  breach  of  the  condition,  even  where  his  failure 
arose  from  some  accident  or  unavoidable  delay,  or  where 
the  payment  of  the  debt  Avith  interest  to  date  of  the  tender 
of  payment  would  do  no  injury  to  the  mortgagee.  This 
rigorous  rule  of  the  common  law  did  not  fail  to  be  product- 
ive  of  great  injustice  in  many  instances,  and  like  all  cases 
of  hardships  resulting  from  the  technicality  of  the  common 
law  it  attracted  the  attention  of  the  Court  of  Chancery. 
A  long  contest  ensued  between  these  courts  from  the  time 
of  the  magna  charta  until  the  reign  of  James  I.,  when  Chan- 
cery acquired  jurisdiction  over  questions  arising  out  of 
mortgages,  and  decreed  that  the  mortgagor  may  become 
entitled  to  redeem  his  estate  from  the  mortgagee,  after  con- 
dition broken,  by  the  payment  of  the  debt  and  interest; 
and  in  the  reign  of  Charles  I.  the  law  of  mortgages  was 
firmly  established  as  a  branch  of  equity  jurisprudence.2 
This  right  of  the  mortgagor  to  redeem  the  estate  after 
the  breach  of  the  condition  was  recognized  only  in  a  court 
of  equity.     The  legal  estate,  as  viewed  from  the  legal  stand- 

1  2  Washb.  on  Keal  Prop.  35 ;  4  Kent's  Com.  140 ;  Fay  v.  Cheney,  14  Pick. 
399;  Brigham  v.  Winchester,  1  Mete.  390;  Wood  v.  Trask,  7  Wis.  566; 
Goodall's  Case,  5  Rep.  96;  Wade's  Case,  5  Rep.  115;  Jones  onMortg.,  sect.  11. 

2  1  SpenceEq.  Jur.603  ;  Jones  on  Morfg.,  sect.  6 ;  How  v.  Vigures,  1  Rep.  in 
Ch.  32;  Emanuel  College  v.  Evans,  lb.  18;  2  Washb.  on  Real  Prop.  39;  Ros- 
carrick  v.  Barton,  1  Ca.  in  Ch.  217;  Casborne  v.  Scarfe,  1  Atk.  603;  Willett 
v.  Winnelly,  1  Verm  488 ;  Price  v.  Perrie,  2  Freem.  258. 

204 


CH.  X.]  MORTGAGES.  §    301 

point,  was  still  considered  absolute  in  the  mortgagee,  and 
discharged  of  all  rights  of  the  mortgagor.  The  right  to  re- 
deem  was  therefore  no  estate  in  the  land.  It  was  simply 
an  equity,  and  hence  was  called  the  equity  of  redemption. 

§  300.  The  mortgage  in  equity.  —  As  a  result  of  thJs 
■equitable  jurisdiction,  mortgages  assumed  in  equity  a  dif- 
ferent character  from  what  they  had  in  law.  Equity  seized 
hold  of  the  real  intention  of  the  parties,  and  construed  the 
mortgage  to  have  only  the  effect  of  a  lien,  instead  of  vest- 
ing a  defeasible  estate  in  the  land.  This  equitable  con- 
struction conforms  more  nearly  to  the  purposes  and  desired 
effect  of  a  mortgage.  It  is  given  only  to  secure  the  pay- 
ment of  a  debt,  or  the  performance  of  some  obligation,  and 
its  ends  are  satisfied,  if  after  condition  broken  means  are 
provided  to  the  mortgagee  for  satisfying  his  claim  by  an 
appropriation  of  the  land,  while  in  the  interim  his  interests 
are  protected  against  any  subsequent  conveyance  of  the 
land.  All  this  is  attained  by  a  lien.  Equity,  therefore, 
held  the  mortgage  to  be  a  lien  upon  the  land,  and  not  an 
estate  in  it.1 

§  301.  Influence  of  equity  upon  the  law.  — As  soon  as 
equity  assumed  jurisdiction  over  mortgages,  it  began  to 
exert  a  potent  influence  over  the  law  in  respect  to  that  class 
of  interests,  and  has  in  the  course  of  time  almost  entirely 
superseded  the  courts  of  law  in  their  jurisdiction.  This  ifc 
specially  true  in  regard  to  the  foreclosure  of  mortgages. 
Although  in  some  of  the  States  the  common-law  foreclosure 

1  Headley  v.  Goundray,  41  Barb.  282;  Jackson  v.  "Willard,  4  Johns.  41; 
Green  v.  Hart,  1  Johns.  580;  Kinna  v.  Smith,  2  Green  Ch.  14;  Hughes  v. 
Edwards,  9  Wheat.  500;  Runyan  v.  Mersereau,  11  Johns.  534;  Deedly  v.  Cad- 
well,  19  Conn.  218;  Eaton  v.  Whiting,  3  Pick.  484;  Ellison  v.  Daniels,  11  N. 
H.  280;  Anderson  v.  Baumgartner,  27  Mo.  80;  Whitney  v.  French,  25  Vt.  663; 
Ragland  v.  Justices,  10  Ga.  65;  Myers  v.  White,  1  Rawle,  353;  Hannah  v. 
Carrington,  18  Ark.  85;  McMillan  v.  Richards,  9  Cal.  365;  Matthews  u. 
Wallwyn,  4  Ves.  118;  Timms  v.  Shannon,  19  Md.  296;  4  Kent's  Com.  138. 

205 


§    301  MORTGAGES.  [PART   I. 

still  prevails  in  a  modified  form,  yet  in  most  of  them,  and 
in  England,  it  has  given  way  to  the  more  practicable  and 
just  foreclosure  in  equity.1 

Not  only  has  equity  supplanted  the  jurisdiction  of  courts 
of  law  in  respect  to  foreclosure,  but  it  has  everywhere,  in 
England  and  in  this  country,  produced,  through  a  legisla- 
tion judicial  and  statutory,  greater  or  less  influence  upon 
the  legal  theories  in  regard  to  the  interest  of  the  mortgagor 
and  the  mortgagee.  In  some  of  the  States  the  modifications 
effected  by  equity  are  but  slight  and  pertain  only  to  minor 
details,  while  the  mortgage  is  still  held  to  be  a  conveyance 
of  an  estate  in  the  land.  Such  is  the  law  in  Maine,  Massa- 
chusetts, New  Hampshire,  Connecticut,  Rhode  Island,  Ver- 
mont, North  Carolina,  Mississippi,  Alabama,  Missouri, 
Indiana,  and  Minnesota.  In  others  the  mortgage  is  still 
considered  a  conveyance  of  an  interest  corresponding  to  an 
estate,  while  the  mortgagee  possesses  in  the  estate  only 
such  rights  and  remedies  as  are  recognized  in  a  court  of 
equity.  The  ordinary  legal  rights  of  ownership  do  not  at- 
tach. Such  will  be  found  to  bo  the  law  in  Pennsylvania, 
South  Carolina,  Texas,  Kentucky,  Ohio,  Illinois,  Iowa,  and 
Wisconsin.  This  class  approximates  so  nearly  to  the  next 
class  to  be  mentioned,  that  in  the  subsequent  discussion  of 
the  rights  of  the  mortgagor  and  mortgagee,  they  will  be 
treated  as  constituting  one  subdivision,  so  far  at  least  as 
general  rules  are  concerned.  In  the  last  class  of  States, 
namely  in  New  York,  Georgia,  and  California,  the  whole 
common  law  theory  has  been  repudiated,  and  the  mortgage 
is  construed  to  be  simply  a  lien  upon  the  land  conveying  no 
legal  estate,  not  even  after  condition  broken.2  This  general 
statement  of  the  change  which  the  law  of  mortgages  has 
undergone,  and  is  still  undergoing,  for  in  most  of  the  States 
it  is  still  in  a  state  of  transition,  will  serve  to  explain  why, 

1  2  Washb.  on  Real  Prop.  98  ;  4  Kent's  Com.  1ST ;     See  post,  sect.  358 
1  2  Washb.  on  Real  Prop.  100-108;  Jones  on  Mortg.,  sects.  17-60. 
20  (5 


CH.  X.]  MORTGAGES.  §    302 

in  the  presentation  of  the  law,  so  much  difficulty  is  experi- 
enced in  attaining  perspicuity  of  statement  and  a  reconcile- 
ment of  authorities.  This  fact  must  ever  be  borne  in  mind, 
that,  although  in  all  the  States  the  law  is  developing  into 
the  lien-theory  so-called,  yet  the  development  in  some  is 
not  as  advanced  as  in  others.  In  the  consultation  of  au- 
thorities, therefore,  in  order  to  ascertain  the  law  in  any 
particular  State,  only  such  cases  may  be  referred  to  with 
safety,  as  are  found  in  those  States  which  are  in  the  same 
state  of  development.  It  is  to  be  further  remembered  that 
even  the  decisions  from  these  States  can  only  be  relied  upon 
as  furnishing  general  rules  of  analogy.  The  details  of  the 
law  of  mortgages  must  be  sought  for  in  the  reports  of  the 
State,  in  which  the  question  arises. 

§  302.  The  form  of  a  mortgage.  —  The  mortgage  con- 
sists of  a  deed,  similar  in  terms  to  the  ordinary  deed  of 
conveyance,  conveying  the  estate  to  the  mortgagee,  but 
qualified  by  a  defeasance  clause,  in  which  it  is  provided 
that  the  conveyance  shall  be  void,  when  the  condition, 
usually  the  payment  of  money,  is  performed,  and  shall  be- 
come absolute  in  the  mortgagee  upon  breach  of  the  condition. 
Generally,  any  deed  which  appears  upon  its  face  to  have 
been  intended  as  a  security  for  the  payment  of  money,  will 
be  construed  as  a  mortgage.1     If  the  instrument  does  not 

1  Co.  Lit.  205  a,  Butler's  note,  96;  Hughes  v.  Edwards,  9  Wheat.  489; 
Morris  v.  Nixon,  1  How.  118;  .Russell  v.  Southard,  12  How.  139;  Bigelow  v. 
Topliff,  25  Vt.  273 ;  Steel  v.  Steel,  4  Allen,  419 ;  Gilson  v.  Gilson,  2  Allen, 
115;  Parks  v.  Hall,  2  Pick.  211.;  Nugent  v.  Riley,  1  Mete.  117;  Vanderhaize 
v.  Hughes,  13  N.  J.  244;  James  v.  Morey,  2  Cow.  246;  Hodges  v.  Tenn. 
Marine,  etc.,  Ins.  Co.,  8  N.  J.  416;  Conway  v.  Alexander,  7  Cranch.  218; 
Howe  v.  Kussell,  36  Me.  115;  Stoever  v.  Stoever,  9  Serg.  &  R.  434;  Bk.  of 
Westminster  v.  Whyte,  1  Md.  Ch.  536;  s.  c,  3  Md.  Ch.  508;  Mende  v.  Dc- 
laire,  2  Desau.  564;  Yarborough  v.  Newell,  lOYerg.  376;  Delahayu.  McConneU 
4  Scam.  156;  Flagg  v.  Mann,  2  Sumn.  386;  Edington  v.  Harper,  3  J.  J. 
Marsh.  353;  Davis  v.  Stonestreet,  4  Ind.  101;  Gibson  v.  Eller,  13  Ind.  124; 
Henry  v.  Davis,  7  Johns.  Ch.  40;  M'Brayer  v.  Roberts,  2  Dev.  Eq.  75;  Hau- 

207 


§    303  MORTGAGES,  [FABT    I. 

conform  to  the  legal  requirements  for  the  execution  of  a 
deed,  as  where  the  seal  has  been  neglected,  or  the  proper 
number  of  attesting  witnesses  is  not  obtained,  the  deed  will 
be  inoperative  as  a  mortgage  at  law,  and  it  is  believed 
generally  in  equity.  But  in  some  of  the  States,  such  an 
imperfect  mortgage  has  been  treated  in  equity  as  imposing 
a  lien  upon  the  land  for  the  benefit  of  the  creditor  which 
partakes  of  the  same  nature  as  a  mortgage  by  deposit  of 
title  deeds.1 

§  303.  Execution  of  the  defeasance.  —  The  defeasance 
clause  is  usually  found  in  the  same  deed,  which  conveys  the 
estate;  but  this  is  not  necessary.  It  is  very  often  con- 
tained in  a  separate  instrument  executed  and  delivered  by 
the  grantee  or  mortgagee  to  the  grantor  or  mortgagor.  In 
such  a  case,  however,  the  instrument  must  be  under  seal, 
in  order  to  have  at  law  the  power  of  converting  the  appar- 
ently absolute  deed  of  conveyance  into  a  mortgage.2     It 

ser  v.  Lash,  2  Dev.  &  B.  Eq.  212 ;  Clark  v.  Henry,  2  Cow.  324 ;  Woodworth  v. 
Guzman,  1  Cal.  203;  Wilson  v.  Drurarite,  21  Mo.  325;  Cotterell  v.  Long,  20 
Ohio,  464;  English  v.  Lane,  1  Port.  328;  Chowning  v.  Cox,  1  Rand.  306; 
Rogan  v.  Walker,  1  Wis.  527 ;  Burnside  v.  Terry,  45  Ga.  621 ;  Mason  v. 
Mood\*,  26  Miss.  184;  4  Kent's  Com.  461;  Newman  v.  Samuels,  17  Iowa, 
528. 

1  Coe  v.  Columbia,  etc.,  R.  R.  Co.,  10  Ohio  St.  372;  Price  v.  Cutts,  29  Ga. 
142-148;  McQuie  v.  Rag,  58  Mo.  56;  Daggett  v.  Rankin,  31  Cal.  321;  Me- 
Clurg  v.  Phillips,  49  Mo.  315;  Burnside  v.  Wayman,  48  Mo.  356;  Harrington 
v.  Fortner,  58  Mo.  4G8;  Dunn  v.  Raley,  58  Mo.  134;  Lake  v.  Doud,  10  Ohio, 
515;  Abbott  v.  Godfrey,  1  Mann.  (Mich.)  198;  Jones  v.  Brewington,  58  Mo. 
565 ;  Black  v.  Gregg,  58  Mo.  505. 

2  Bodwell  v.Webster,  13  Pick.  411;  Harrison  v.  Trustees,  12  Mass.  459; 
Flint  v.  Sheldon,  13  Mass.  443;  Richardson  v.  Woodbury,  48  Me.  206; 
Adams  v.  Stevens,  49  Me.  362;  Warren  v.  Lovis,  53  Me.  464 ;  French  v.  Stur- 
divant,  8  Greenl.  246;  Lund  v.  Lund,  1  N.  H.  39;  Dey  r.  Dunham,  2  Johns. 
Ch.  191;  Baker  v.  Wind,  1  Ves.  sr.,  160;  Perkins  v.  Dibble,  10  Ohio,  433; 
Whitney  v.  French,  25  Vt.  663 ;  Kent  v.  Allbritain,  5  Miss.  317 ;  Baldwin  v. 
Jenkins,  23  Miss.  206 ;  Lane  v.  Shears,  1  Wend.  433 ;  Stoever  v.  Stoever,  9 
Serg.  &  R.  434 ;  Houser  v.  Lamont,  55  Pa.  St.  311 ;  Plato  v.  Roe,  14  Wis.  453 ; 
Preschbaker  v.  Feaman,  32  111.  475 ;  Sharkey  v.  Sharkey,  47  Mo.  543 ;  Clark 
v.  Lyon,  46  Ga.  203 ;  Copeland  v.  Yoakum,  38  Mo.  349 ;  Baxter  v.  Dear,  24 

208 


CH.  X.]  MORTGAGES.  §    304 

must  either  be  executed  at  the  same  time  or  subsequently 
in  pursuance  of  an  agreement  entered  into  at  the  time  of 
conveyance.  And  as  a  general  rule,  although  it  is  not 
necessary  that  the  deed  and  the  defeasance  should  bear  the 
same  date  or  be  executed  at  the  same  time,  they  must  be 
delivered  at  the  same  time.  Delivery  of  the  defeasance  is 
essential  to  its  full  legal  operation.1 

§  304.  Form  of  the  defeasance. — No  particular  form 
is  necessary,  provided  the  deed  clearly  shows  the  intention 
of  the  parties  that  the  instrument  shall  have  the  effect  of  a 
mortgage.  And  wherever  the  condition  in  a  deed  is  the 
payment  of  money,  the  presumption  of  law  is  always  in 
favor  of  its  being  treated  as  a  mortgage.  Any  agreement 
under  seal,  therefore,  which  provides  for  the  contingent 
avoidance  of  a  deed  of  conveyance,  or  calls  for  the  recon- 
veyance of  the  estate,  upon  the  payment  of  a  sum  of  money 
within  the  prescribed  time,  will  be  a  defeasance  deed  and 
will  make  the  deed  of  conveyance  a  mortgage.  And  where 
the  relation  of  debtor  and  creditor  existed,  any  such  agree- 
ment would  be  held  to  create  a  mortgage,  although  the  par- 
ties did  not  intend  that  that  should  be  the  effect  of  the 

Texas,  17;  Crasson  v.  Swoveland,  22  IncL  427;  Hill  v.  Edwards,  11  Minn.  22; 
Marshall  v.  Stewart,  17  Ohio,  356;  Robinson  v.  Willoughby,  65  N.  C.  520; 
Enos  v.  Sutherla.'.d,  11  Mich.  538;  Archarabau  v.  Green,  21  Minn.  520;  Free- 
man v.  Baldwin,  13  Ala.  246;  Edington  v.  Harper,  3  J.  J.  Marsh.  353;  Ham- 
monds v.  Hopkins,  3  Yerg.  525 ;  Clark  v.  Henry,  2  Cow.  324. 

1  Bennock  v.  Whipple,  12  Me.  340;  Bodwell  v.  Webster,  13  Pick.  411 ; 
Scott  v.  McFarland,  13  Mass.  309;  Lund  v.  Lund,  1  N.  H.  49;  Kelly  v. 
Thompson,  7  Watts,  401 ;  Reitenbaugh  v.  Ludwick,  31  Pa.  St.  131 ;  Hale  v. 
Jewell,  7  Greenl.  435 ;  Holmes  v.  Grant,  8  Paige  Ch.  243 ;  Bryant  v.  Cowart,  21 
Ala.  9;  Sweethmd  v.  Swetland,  3  Mich.  482;  Harrisony.  Phillip's  Academy,  12 
Mass.  450 ;  Newhall  v.  Bart,  7  Pick.  157 ;  Col  well  v.  Woods.  3  Watts,  188 ;  Kelley 
v.  Thompson,  7  Watts,  401 ;  Scott  v.  Henry,  13  Ark.  112;  Nugent  v.  Riley,  1 
Mete.  117;  Crane  v.  Bonnell,  1  Green  Ch.  264;  Wilson  v.  Shoenberger,  31 
Pa.  St.  295;  Mclntier  v.  Shaw,  6  Alien,  83  J  McLaughlin  v.  Shepherd,  32  Me. 
143;  Brown  v.  Holyoke,  53  Me.  9;  Kelleran  v.  Brown,  4  Mass.  443;  Haines  v. 
Thompson,  70  Pa.  St.  4:24;  Preschbaker  v.  Feainan,  32  111.  475,  Bickford  v. 
Daniels,  2  N.  H.  71. 

14  209 


§    305  MORTGAGES.  [PART   I. 

transaction.1     Such    agreements    or   defeasance    deeds   or 
clauses  are  to  be  distinguished  from 

§  305.  Agreements  to  re-purchase,  —  Which  very  often 
bear  a  close  resemblance  to  each  other.  The  difference 
in  the  legal  effect  of  the  two  is  very  great.  If  the  agree- 
ment be  merely  to  repurchase  upon  certain  specified 
terms,  or  at  the  time  stipulated,  a  failure  to  comply  with 
the  terms  of  the  agreement  destroys  the  right  to  repurchase, 
and  the  grantor  has  no  equity  of  redemption,  of  which  he 
can  afterward  avail  himself  in  a  court  of  equity.  If  it  is  a 
defeasance,  he  has  that  right,  the  conveyance  being  a  mort- 

1  Nugent  v.  Riley,  1  Mete.  117;  Hebron  v.  Centre  Harbor,  11  N.  H.  571; 
Holmes  v.  Grant,  8  Paige  Ch.  243;  Lanfair  v.  Lanfair,  18  Pick.  299;  Austin  v. 
Downer,  25  Vt.  558 ;  Stewart  v.  Hutchings,  13  Wend.  485 ;  Carey  v.  Rawson, 
8  Mass.  159;  Gilson  v.  Gilson,  2  Allen,  115;  Hicks  v.  Hicks,  5  Gill  &  J.  75; 
Breckenridge  v.  Auld,  1  Robt.  148;  Read  v.  Gaillard,  2  Desau.  552;  Harrison 
v.  Lemon,  3  Blackf.  51 ;  Carr  v.  Holbrook,  1  Mo.  240 ;  Belton  v.  Avery,  2  Root, 
279;  Marshall  v.  Stewart,  17  Ohio,  356;  Pugh  v.  Holt,  27  Miss.  461,  Batty  v. 
Snook,  5  Mich.  231 ;  Gillis  v.  Martin,  2  Dev.  Eq.  470;  Ogden  v.  Grant,  6  Dana, 
473 ;  Coldwell  v.  Woods,  3  Watts,  188 ;  Kunkle  v.  Wolfersberger,  6  Watts, 
126;  Watkins  v.  Gregory,  6  Blackf.  113;  Peterson  v.  Clark,  15  Johns.  205, 
Rice  v.  Rice,  4  Pick.  349.  In  some  of  the  States  a  separate  deed  of  defeasance 
is  required  to  be  recorded,  in  order  to  convert  an  absolute  deed  into  a  mort- 
gage, as  against  every  one  except  the  maker.  Tomlinson  v.  Monmouth  Ins. 
Co.  47  Me.  232;  2  Comp.  Laws  Mich.  (1871),  p.  1346;  1  Minn.  Stat,  at  Large, 
(1873),  p.  640 ;  Russell  v.  Waite,  AValk.  31.  But  where  such  is  not  the  law,  any 
other  notice,  actual  or  constructive,  suffices  to  bind  subsequent  purchasers.  If 
they  have  no  notice  of  the  defeasance  at  all,  the  deed  as  to  them  will  be  an  ab- 
solute conveyance.  Newhall  v.  Pierce,  5  Pick.  450;  Parrington  v.  Pierce,  38 
Me.  447;  Walton  v.  Crowley,  14  Wend.  63;  Brown  v.  Dean,  3  Wend.  208; 
James  v.  Johnston,  6  Johns.  Ch.  417  ;  Friedley  v.  Hamilton,  17  Serg.  &  R.  70; 
Harrison  v.  Trustees,  12  Mass.  456 ;  Knight  v.  Dyer,  57  Me.  177  ;  Dey  v.  Dun- 
ham, 2  Johns.  Ch.  182;  Wyatt  v.  Stewart,  34  Ala.  716;  Halsey  v.  Martin,  22 
Cal.  645 ;  Henderson  v.  Pilgrim,  22  Texas,  475.  And  where  they  are  both  re- 
corded they  must  show  for  themselves,  that  they  are  parts  of  the  same  transac- 
tion, in  order  that  the  record  may  be  constructive  notice  to  purchasers.  Weide 
v.  Gehl,  21  Minn.  449 ;  Hill  v.  Edwards,  11  Minn.  22 ;  King  v.  Little,  1  Cush. 
436.  Possession  by  the  grantor  is  not  notice  of  a  defeasance  deed  held  by  him. 
Newhall  v.  Pierce,  5  Pick.  450,  Hennessey  v.  Andrews,  6  Cush.  170;  Kunkle- 
v.  Wolfsberger,  6  Watts.  126 ;  Crassen  v.  Swoveland,  22  Ind.  434.  See  contra, 
Daubenspeck  v.  Piatt,  22  Cal.  330;  Pritchard  v.  Brown,  4  N.  H.  397. 
210 


CH.  X.]  MORT<  AGES.  §    305 

gage.  Wherever  a  doubt  exists  whether  the  agreement  is 
one  to  repurchase  or  a  defeasance,  the  courts  are  inclined 
to  the  latter  construction.  And  where  the  relation  between 
the  parties  is  that  of  debtor  and  creditor,  and  the  intention 
of  the  parties,  as  shown  on  the  face  of  the  deed,  is  that  the 
agreement  should  operate  as  a  security  for  the  debt,  the 
presumption  becomes  conclusive  that  the  agreement  is  a 
defeasance.  And  generally,  under  such  circumstances, 
parol  evidence  will  not  be  admissible  to  rebut  this  presump- 
tion, although  such  evidence  is  freely  admitted  to  rebut 
the  contrary  p resumption. 1  Each  case,  however,  must  de- 
pend upon  its  own  circumstances,  and  the  question  finally 
becomes  one  of  fact,  whether  it  was  intended  that  the  agree- 
ment should  operate  as  a  defeasance  or  as  a  conditional  sale.3 

1  2  Cruise  Dig.  74 ;  4  Kent's  Com.  144 ;  Kelly  v.  Thompson,  7  Watts,  401 ; 
Wing  v.  Cooper,  37  Vt.  179;  Trucks  v.  Lindsay,  18  Iowa,  505;  Trull  v. 
Skinner,  17  Pick.  216;  Page  v.  Foster,  7  N.  H.  392;  Conway  v.  Alexander,  7 
Cranch,  218 ;  Flagg  v.  Mann,  14  Pick.  483 ;  Weathersly  v.  Weathersly,  40  Miss. 
469 ;  Pearson  v.  Seay,  35  Ala.  612 ;  Rich  v.  Doane,  35  Vt.  125 ;  DeFrance  v. 
DeFrance,  34  Pa.  St.  385;  Watkins  v.  Gregory,  6  Blackf.  113;  Rice  v.  Rice, 
4  Pick.  349 ;  Haines  v.  Thompson,  70  Pa.  St.,  438 ;  Woodson,  v.  Wallace,  22 
Pa.  St.  171 ;  Peterson  v.  Clark,  15  Johns.  205 ;  Robinson  v.  Cropsey,  2  Edw. 
Ch.  138;  s.  c.  6  Paige,  480;  Brown  v.  Dewey,  1  Sandf.  Ch.  56;  Hughes  v. 
Sheaff,  19  Iowa,  335;  Sears  v.  Dixon,  33  Cal.  326;  Poindexter  v.  McCannon,  1 
Dev.  Eq.  373 ;  Davis  v.  Stonestreet,  4  Ind.  191 ;  Heath  v.  Williams,  30  Ind. 
495;  Cornell  v.  Hull,  22  Mich.  377;  Pennington  v.  Hanby,4  Munf.  140;  Henly 
v.  Hotaling,  41  Cal.  22;  Snyder  v.  Griswold,  37  111.216;  McCarron  v.  Cassidy, 
18  Ark.  34 ;  Montgomery  v.  Chad  wick,  7  Iowa,  114 ;  Kearney  v.  McComb,  16  N. 
J.  Eq.  189 ;  Glover  v.  Payne,  19  Wend.  518.  But  if  the  debt  is  an  old  one, 
and  the  intention  of  the  parties  is  to  pay  the  debt  by  the  conveyance,  the 
agreement  to  repurchase  will  not  convert  the  deed  into  a  mortgage,  as  it 
would  if  the  conveyance  was  intended  as  a  security  for  the  conveyance. 
Glover  v.  Payne,  19  Wend.  518;  French  v.  Sturdivant,  8  Me.  246;  Hillhouse 
v.  Dunning,  7  Conn.  143;  Murphy  v.  Parifay.  52  Ga.  480;  Slowey  v.  McMur- 
ray,  27  Mo.  113;  O'Neill  v.  Capelle,  62  Mo.  202;  Honore  v.  Hutchings,  8 
Bush,  687;  .Pitts  v.  Cable,  41  111.  103,  Magnusson  v.  Johnson,  73  111.,  156; 
Hall  v.  Saville,  3  Greene  (Iowa),  37 ;  West  v.  Hendrix,  28  Ala.  226 ;  Ruffier  v. 
Womack,  36  Texas,  332;  Hickox  v.  Lowe,  10  Cal.  197 

2  But  in  order  that  :•  conveyance  may  be  treated  as  a  mortgage,  there  must 
be  a  debt  or  a  loan.  If  there  be  no  debt,  the  agreement  to  reconvey  is  an 
agreement  to  repurchase,  or  converts  the  original  conveyance   into  a  cond»- 

211 


§    306  MORTGAGES.  [PART    I. 

Among  the  circumstances,  which  tend  to  establish  the  pre- 
sumption that  the  agreement  is  a  defeasance,  are  the  inade- 
quacy of  the  consideration,  the  continued  possession  of  the 
grantor,  the  necessities  or  financial  embarrassments  of  the 
grantor;  while  the  adequacy  of  the  consideration,  the 
possession  of  the  grantee,  the  vesting  of  the  right  to  en- 
force the  agreement  in  a  third  person,  the  existence  of  other 
securities  in  the  possession  of  the  grantor  for  the  payment 
of  the  consideration  of  the  original  conveyance,  go  to  prove 
that  it  was  a  conditional  sale,  or  that  the  grantor  has  only 
the  right  to  repurchase.1 

§   306.   The    defeasance    clause    in  equity.  —  If  the  in- 
strument containing  the  defeasance  does  not  fulfil  all  the 

tional  sale.  Conway  v.  Alexander,  7  Craneh,  218;  Lund  v.  Lund,  1  N.  H.  39; 
Flagg  v.  Mann,  14  Pick,  467;  Reading  v.  Weston,  7  Conn.  143;  Gait  v.  Jack- 
son, 9  Ga.  151 ;  Pearson  v.  Seay,  35  Ala.  612 ;  Henley  v.  Hotaling,  41  Cal.  22 ; 
De  Frances.  De  France,  34  Pa.  St.  385;  Rich  v.  Doane,  35  Vt.  125. 

i  Williams  v.  Owen,  5  Mylne  &  C.  303 ;  Perry  v.  Meddowcraft,  4  Beav.  197 ; 
Haines  v.  Thompson,  70  Pa.  St.  442;  Hiester  v.  Madeira,  3  Watts  &  S.  384; 
Baker  v.  Thrasher,  4  Denio,  493;  Slowey  v.  McMurray,  31  Mo.  113;  Conway 
v.  Alexander,  7  Craneh,  218;  Holmes  v.  Grant,  8  Paige  Ch.  243;  Russell  v. 
Southard,  12  How.  139;  Waters  v.  Randall,  6  Mete.  479;  Todd  v.  Har- 
die,  5  Ala.  698  »  West  v.  Hendrix,  28  Ala.  226 ;  Luckett  v.  Townshend,  3 
Texas,  119;  Edington  v.  Harper,  3  J.  J.  Marsh.  353;  Davis  v.  Stonestreet,  4 
Ind.  101 ;  Sellers  v.  Stalcup,  7  Ired.  Eq.  13 ;  Bennett  v.  Holt,  2  Yerg.  6 ;  Flagg  v. 
Mann,  14  Pick  467 ;  Low  v.  Henry,  9  Cal.  538 ;  Warren  v.  Lovis,  53  Me.  463 ; 
Ransone  v.  Frayser,  10  Leigh,  592;  Gibson  v.  Eller,  13  Ind.  124;  Campbell  v. 
Dearborn,  109  Mass.  130;  Thompson  v.  Banks,  2  Md.  Ch.  430;  Freeman  r. 
Wilson,  61  Miss.  329;  Brown  v.  Dewey,  1  Sandf.  Ch.  56;  Carr  v.  Rising,  62 
111.  14 ;  Pearson  v.  Seay,  35  Ala.  612 ;  Elliott  v.  Maxwell,  7  Ired.  Eq.  246 ;  Trucks 
v.  Lindsey,  18  Iowa,  504;  Gibbs  v.  Penny,  43  Texas,  500 ;  Crews  v.  Threadgill,  35 
Ala.  334;  Wilson  v.  Patrick,  34  Iowa,  361 ;  Daubenspeck  v.  Piatt,  22  Cal.  330. 
When  it  is  doubtful  on  all  the  facts  of  the  case,  whether  the  transaction  is  a 
mortgage  or  a  conditional  sale,  it  is  alwaj^s  presumed  to  be  a  mortgage.  Rus- 
sell v.  Southard,  12  How.  139;  Eaton  v.  Green,  22  Pick.  526;  Crane  v. 
Bonnell,  1  Green  Ch.  264;  Baugher  v.  Merryman,  32  Md.  185;  Bacon  v. 
Brown,  19  Conn.  34;  Turnipseed  v.  Cunningham,  16  Ala.  501 ;  Cottrell  v. 
Long,  20  Ohio,  464;  Gillis  v.  Martin,  2  Dev.  Eq.  470;  O'Neil  v.  Capelle,  62 
Mo.  209 ;  Turner  v.  Kerr,  44  Mo.  429 ;  Heath  v.  Williams,  30  Ind.  498 ;  Pcott 
v.  Henry,  13  Ark.  112 ;  S wetland  v.  S  wetland,  3  Mich.  645 ;  Trucks  v.  Lindsay, 
18  Iowa,  504  ;  Ward  v.  Deering,  4  Mon.  44. 
212 


CH.  X.]  MORTGAGES.  §    307 

legal  requirements  of  a  deed,  it  will  not  in  a  court  of  law 
have  the  effect  of  converting  an  absolute  conveyance  into  a 
mortgage.  But  it  will  be  good  in  equity,  and  in  that  court 
the  conveyance  will  be  treated  and  enforced  as  a  mortgage 
against  all  having  actual  notice  of  its  real  character.  Thus, 
the  want  of  a  seal,  the  absence  of  the  requisite  number  of 
witnesses,  an  improper  acknowledgment  of  the  deed,  would 
invalidate  the  defeasance  in  law,  but  it  would  be  enforced 
in  equity.1  Courts  of  equity  have  not  only  gone  thus  far 
in  correcting  and  supplementing  the  common  law,  but  they 
have  also,  in  cases  where  the  defeasance  was  not  put  to 
writing,  sustained 

§  307.  The  admissibility  of  parol  evidence,  —  To  prove 
that  a  deed,  absolute  on  its  face,  was  intended  to  be  a  mort- 
gage. The  authorities  are  not  uniform  as  to  how  far,  or  in 
what  cases,  such  evidence  is  admissible.  Some  have  held 
that  in  any  case  parol  evidence  can  be  introduced  to  prove 
a  deed  to  be  a  mortgage,  thus  ignoring  completely  the  ap- 
plication of  the  Statute  of  Frauds  to  mortgages,2  while  others 

1  Story  Eq.  Jur.,  sect.  1018 ;  Kelleran  v.  Brown,  4  Mass.  444 ;  Eaton  v.  Green, 
22  Pick.  626 ;  Delaire  v.  Keenan,  3  Desau.  74 ;  Woods  v.  Wallace,  22  Pa.  St., 
171;  Flagg  v.  Mann,  14  Pick.  467;  Cutter  v.  Dickinson,  8  Pick.  386;  Jewett 
v.  Bailey,  5  Me.  87 ;  Warren  v.  Louis,  53  Me.  463  ;  Murphy  v.  Calley,  1  Allen, 
107 ;  Gillis  v.  Martin,  2  Dev.  Eq.  470. 

8  Kussell  v.  Southard,,12  How.  139;  Babcock  v.  Wyman,  19  How.  239; 
Sprigg  v.  Bk.  of  Mt.  Pleasant,  14  Pet.  201 ;  Jordan  v.  Fenno,  13  Ark. 
593;  Anthony  v.  Anthony,  23  Ark.  479;  Pierce  v.  Robinson,  13  Cal.  116; 
Farmer  v.  Grose,  42  Cal.  169;  Kuhn  v.  Rumpp,  46  Cal.  299;  Klock  v.  Wal- 
ter, 70  111.  416;  Wynkoop  v.  Cowing,  21  111.  570;  Sutphen  v.  Cushman, 
35  111.  186;  Conwell  v.  Evill,  4  Ind.  67;  Heath  v.  Williams,  30  Ind.  495; 
Roberts  v.  McMahan,  4  Greene  (Iowa),  34 ;  Johnson  v.  Smith,  39  Iowa  549 ; 
Zuver  v.  Lyons,  40  Iowa,  570;  Moore  v.  Wade,  8  Kan.  381  ;  Richardson  v. 
Woodbury,  43  Me.  206;  Whitney  v.  Batchelder,  32  Me.  313;  Campbell  v. 
Dearborn,  109  Mass.  130;  12  Am.  Rep.  671;  Hassam  v.  Barrett,  115  Mass. 
24;  McDonough  v.  Squire,  111  Mass.  256;  Flagg  v.  Mann,  14  Pick.  467,  478; 
Glass  v.  Hulbert,  102  Mass.  24;  Emerson  v.  Atwater,  7  Mich.  12; 
Swetland  v.  Swetland,  3  Mich.  482;  Wadsworth  v.  Loranger,  Har. 
(Mich.)  113;    Belate  v.    Morrison,   8  Minn.  87;    Weide  v.  Gehl,   21   Minn. 

213 


§    307  MORTGAGES.  [PART    I. 

either  deny  the  right  altogether,1  or  limit  its  admissibility  to 
such  cases  as  fall  within  the  ordinary  equitable  jurisdiction 
of  fraud,  accident  or  mistake,  i.e.,  where  the  failure  to  re- 
duce the  defeasance  to  writing  arose  through  some  fraud, 
accident  or  mistake.2  As  a  general  rule,  such  evidence 
will  be  received  only  in  a  court  of  equity,  and  although 
perhaps  the  majority  of  the  courts  apply  the  rule  to  every 
case,  irrespective  of  any  question  of  fraud,  yet,  upon  a 
closer  analysis  of  the  cases,  it  will  be  found  that  in  no  case 

449 ;  Freeman  v.  Wilson,  51  Miss.  329 ;  Littlewort  v.  Davis,  50  Miss. 
403;  O'Neill  v.  Capelle,  62  Mo.  202;  Hogel  v.  Lindell,  10  Mo.  483; 
Slowey  v.  McMurray,  27  Mo.  110 ;  Schade  v.  Bessenger,  3  Neb.  140;  Cookes 
v.  Culbertson,  9  Nev.  199;  Sweet  v.  Parker,  22  N.  J.  Eq.  453 ;  Crane  v.  Bun- 
nell, 1  Green  Ch.  264;  Strong  v.  Stewart,  4  Johns.  167  ;  Horn  v.  Keteitas,  46 
N.  Y.  605;  Carr  v.  Carr,  52  N.  Y.  258;  Fielder  v.  Darien,  50  N.  Y.  437;  Mur- 
ray v.  Walker,  31  N.  Y.  399;  Miami  Ex.  Co.  v.  U.  S.  Bank,  Wright,  249; 
Cottrell  v.  Long,  20  Ohio,  464;  Kerr  v.  Gilmore,  6  Watts,  405;  Rhines  v. 
Baird,  41  Pa.  St.  256;    Palmer  v.  Guthrie,  76  Pa.  St.  441 ;    Taylor  v.  Luther, 

2  Sumn.  228 ;  Nichols  v.  Reynolds,  1  R.  I.  30 ;  Nichols  v.  Cabe,  3  Head.  93 ; 
Haynes  v.  Swann,  6  Heisk.  560;  Ruggles  v.  Williams,  1  Head,  141;  Mead  v 
Randolph,  8  Texas,  191 ;  Carter  v.  Carter,  5  Texas,  93;  Gibbs  v.  Penny,  43 
Texas,  560;  Wright  v.  Bates,  13  Yt.  348;  Hills  v.  Loomis,  42  Vt.  562;  Ross  r. 
Norvell,  1  Wash.  (Va.)  14;  Bird  v.  Wilkinson,  4  Leigh,  26T;  Klinck  v.  Price, 
4  W.  Va.  4;  6  Am.  Rep.  268;Rogan  v.  Walker,  1  Wis.  527;  Wilcox  v.  Bates, 
26  Wis.  465. 

1  Bassett  v.  Bassett,  ION.  H.  64;  Porter  v.  Nelson,  4  N.  H.  130;  Boody  v. 
Davis,  20  N.  H.  140.  By  statute,  in  Georgia,  the  admissibility  of  parol  evi- 
dence is  limited  to  cases  of  fraud  in  the  procurement  of  the  absolute  deed. 
Code  Ga.  (1873),  p.  669;  Spence  r.  8teadman,  49  Ga.  133;  Broach  v.  Barfield, 
57  Ga.  601.  In  Connecticut,  it  has  been  lately  held  to  be  a  doubtful  question. 
Osgood  v.  Thompson  Bk.,  30  Conn.  27. 

Washburn  v.  Merrills,  1  Day,  109;  Collins  v.  Tillon,  26  Conn.  368;  Brain- 
erd  v.  Brainerd,  15  Conn.  575;  French  v.  Burns,  35  Conn.  3-39;  Chaires  v. 
Brady,  19  Fla.  133;  Spence  v.  Steadman,  49  Ga.  133;  Biggars  v.  Bird,  55 
Ga.  650;  Skinner  v.  Miller,  5  Litt.  86;  Blanchard  v.  Kenton,  4  Bibb., 
451.  And  if  the  deed  is  made  absolute  so  as  to  cover  up  a  usurious  contract, 
it  will  be  such  a  ground  of  fraud  in  Kentucky  as  will  admit  parol  evidence. 
Murphy  v.  Trigg,  1  Mon.  72;  Cook  v.  Colyer,  2  B.  Mon.  71 ;  Bk.  of  West- 
minster v.  Whyte,  1  Md.  Ch.  53a ;  s.  c.  3  Id.  508;  Artz  v.  Grove,  21  Md.  474; 
Price  v.  Grover,  40  Md.  102;  Kelly  v.  Bryan,  6  lred.  Eq.  283 ;  Brother  v 
Harrill,  2    Jones  Eq.  209 ;    Glisson    v.    Hill,  Id.   256 ;    Arnold  v.    Mattisor. 

3  Rich.  Eq.  153. 

214 


CH.  X.]  .  MORTGAGES.  §    308 

does  the  court  of  equity  interfere  and  permit  the  introduc- 
tion of  parol  evidence,  unless  the  circumstances  of  the  case 
are  such  as  would  make  the  vendee  guilty  of  at  least  con- 
structive fraud  in  insisting  upon  the  deed  being  treated  as 
an  absolute  conveyance.1 

§  308.  Contemporaneous  Agreements.  —  If  the  deed 
be  in  fact  a  mortgage,  not  only  will  no  parol  evidence  be 
admitted  to  show  that  such  was  not  the  intention  of  the 
parties,  but  it  is  also  impossible  by  any  contemporaneous 
agreement  of  the  most  formal  character  to  withdraw  from 
the  mortgage  the  rights  which  are  incident  thereto,  or  to 
change  the  obligations  of  the  parties  thereunder  in  any  man- 
ner whatsoever.  The  right  to  redeem  after  condition  broken 
can  never  be  taken  away  by  such  an  agreement.  The  agree- 
ment is  simply  void.2     Neither  can  the  mortgage  provide 

1  In  most  of  the  States  where  the  rule  is  broad  as  above  stated,  it  is  held,  to 
employ  the  language  of  Mr.  Jones,  that  "  fraud  in  the  use  of  the  deed  is  as 
much  a  ground  for  the  interposition  of  equity  as  fraud  in  its  creation."  Jones 
onMortg.  sect.  288;  Pierce  v.  Robinson,  13  Cal.  116;  Conwall  v.  Evill,  4  Ind. 
67;  O'Neill  v.  Capelle,  62  Mo.  202;  Moreland  v.  Bernhart,  44  Texas,  275, 
283 ;  Wright  v.  Bates,  13  Vt.  348 ;  Rogan  v.  "Walker,  1  Wis.  52 ;  Strong  v.  Stew- 
art, 4  Johns.  Ch.  167.  See  generally  the  cases  cited  supra.  Under  this  theory, 
the  extreme  doctrine,  that  parol  evidence  is  admissible  to  show  an  absolute 
deed  to  be  a  mortgage,  does  not  conflict  with  the  ordinary  construction  of  the 
Statute  of  Frauds. 

*  Wing  v.  Cooper,  37  Vt.  181 ;  Clark  v.  Henry,  2  Cow.  324 ;  Henry  v. 
Davis,  7  Johns.  Ch.  40;  Waters  v.  Randall,  6  Mete.  479;  Bailey  v.  Bailey,  5 
Gray,  505;  Vanderhaize  v.  Haques,  13  N.J.  244;  Oldenbaugh  V.Bradford, 
67  Pa.  St.  104;  Rankin  v.  Mortimere,  7  Watts,  372;  Baxter  v.  Child,  39  Me. 
110 ;  Johnston  v.  Gray,  16  Serg.  &  R.  361 ;  Murphy  v.  Calley,  1  Allen,  107 ; 
Clark  v.  Condit,  18  N.  J.  Eq.  358 ;  Batty  v.  Snook,  5  Mich.  231 ;  Thompson 
v.Davenport,  1  Wash.  (Va.)  125;  Eaton  v.  Whiting,  3  Pick.  484;  Davis  v. 
Stonestreet,  4  Ind.  101;  Wynkoop  v.  Cowing,  21  111.570;  Robinson  v.  Far- 
relly,  16  Ala.  472  ;  Cherry  v.  Bowen,  4  Sneed,  415;  Lee  v.  Evans,  8  Cal.  424; 
Pierce  v.  Robinson,  13  Cal.  125;  Rogan  v.  Walker,  1  Wis.  527;  Plato  v.  Roe> 
14  Wis.  453;  Willetts  v.  Burgess,  34  111.  494;  Seton  v.  Slade,  7  Ves.  265; 
Newcomb  v.  Bonham,  1  Vern.  7  ;  Co.  Lit.  205  a,  n.  96 ;  1  Spence  Eq.  Jur.  693 ; 
Miami  Ex.  Co.  v.  U.  S.  Bank,  Wright  (Ohio),  253 ;  Youle  v.  Richards,  1  N. 
J.  Eq.  534;  McClurkan  v.  Thompson,  69  Pa.  St.  305. 

215 


§    309  MORTGAGES.  [PART   I. 

for  redemption  within  a  shorter  period  than  what  is  allowed 
by  law,  nor  impose  an  increased  rate  of  interest  after  breach 
of  the  condition,  nor  require  anything  else  which  would  in 
the  slightest  degree  curtail  the  right  to  redeem.1 

309.  Subsequent  Agreements.  — But  it  is  possible  for 
the  mortgagor  by  a  subsequent  agreement,  either  to  de- 
prive himself  entirely  of  the  equity  of  redemption,  or  to 
limit  its  exercise.  But  in  view  of  the  peculiar  relation  of 
the  parties,  and  the  possibility  of  duress  and  undue  influ- 
ence through  the  perhaps  impecunious  condition  of  the 
mortgagor,  courts  of  equity  look  with  suspicion  upon  all 
such  agreements ;  and  if  there  is  any  improper  advantage 
taken  of  his  financial  embarrassment,  or  the  transaction  is  in 
the  slightest  degree  a  hard  bargain,  the  agreement  will  be 
annulled,  and  the  mortgagor  permitted  to  redeem.  For  that 
reason  the  purchase  by  the  mortgagee  of  the  mortgagor's 
equity  of  redemption  must  be  conducted  with  the  most 
scrupulous  care,  in  order  to  remove  from  the  transaction  all 
suspicion  of  fraud.2 

1  Johnston  v.  Gray,  16  Serg.  &  R.  361 ;  Howard  v.  Harris,  1  Vern.  33 ; 
Spurgeon  v.  Collier,  1  Eden,  55 ;  Willett  v.  Winnell,  1  Vern.  488 ;  Mayo  v. 
Judah,  6  Munf.  495 ;  Price  v.  Perrie,  Freem.  Ch.  257 ;  Sheckell  v.  Hopkins, 
2  Md.  Ch.  89;  Hallifax  v.  Higgens,  2  Vern.  134;  McGready  v.  McGready,  IT 
Mo.  597 ;  McClurkan  v.  Thompson,  69  Pa.  St.  305 ;  Toomes  v.  Couset,  3  Atk. 
261 ;  Waters  v.  Randall,  6  Mete.  479;  Chambers  v.  Goldwin,  9  Ves.  271 ;  Jen- 
nings v.  "Ward,  2  Vern.  520;  Chambers  v.  Goldwin,  9  Ves.  71 ;  Leith  ■y.Irvine, 
1  My.  &  K.  277  ;  Blackburn  v.  Warwick,  2  Younge  &  C.  92.  But  it  has  been 
held  that  the  right  to  redeem  may  be  postponed  for  a  reasonable  time  by 
the  agreement  of  the  parties.  Talbot  v.  Br»ddill,  1  Vern.  183 ;  Cowdry  r. 
Day,  1  Gif.  316.  And  an  agreement  that,  upon  the  failure  to  pay  interest 
or  an  instalment  of  the  principal  when  due,  the  entire  debt  will  fall  due,  is 
good,  and  does  not  curtail  the  right  to  redeem.  Ferris  v.  Ferris,  28  Barb.  29 ; 
People  v.  Supreme  Court,  19  Wend.  104;  Noyes  v.  Clark,  7  Paige,  179;  James 
v.  Thomas,  5  B.  &  Ad.  40 ;  Basse  v.  Gallagher,  7  Wis.  442 ;  Ottawa  Plank 
Road  v.  Murray,  15  111.  336.     Contra,  Tiernan  v.  Hinman,  16  111.  400. 

2  Russell  v.  Southard,  12  How.  (U.  S.)  139;  Trull  v.  Skinner,  17  Pick.  213; 
Falis  v.  Conway  Ins.  Co.,  7  Allen,  49;  Harrison  v.  Trustees,  12  Mass.  456; 
Rice  w.  Bird,  4  Pick.  350;  Patterson  v.  Yeaton,  47  Me.  308;  Villa  v.  Rodri- 

216 


CH.  X.]  MORTGAGES.  §    310 

§  310.  The  mortgage  debt.  — There  can  be  no  mortgage 
without  a  mortgage  debt.  The  debt  may  be  either  ante- 
cedent or  contemporary,  or  it  may  be  incurred  in  the  future, 
the  last  being  known  as  future  advances.  All  that  is 
required  is  that  the  debt  is  sufficiently  described  and  limited 
in  the  mortgage,  so  that  it  may  be  recognized  and  distin- 
guished from  other  obligations.1     The  debt  creates  a  per- 

guez,  12  Wall.  323 ;  Lawrence  v.  Stratton,  6  Cush.  163 ;  Hyndman  v.  Hynd- 
man,  19  Vt.  9 ;  Holdridge  v.  Gillespie,  2  Johns.  Ch.  30 ;  Mason  v.  Grant,  21 
Me.  160;  Maxfield  v.  Patchen,  29  111.  42;  Carpenter  v.  Carpenter,  70  111.  457; 
Sheckell  v.  Hopkins,  2  Md.  Ch.  89;  Marshall  v.  Stewart,  17  Ohio,  356;  Wyn- 
koop  v.  Cowing,  21  111.  570;  Baugher  v.  Merryraan,  32  Md.  185;  Locke  v 
Palmer,  26  Ala.  312 ;  Shubert  v.  Stanley,  52  Ind.  46 ;  Waters  v.  Randall,  6 
Mete.  479;  Vennum  v.  Babcock,  13  Iowa,  194;  Green  v.  Butler,  26  Cal.  602; 
Henry  v.  Davis,  7  Johns.  Ch.  40;  Mills  v.  Mills,  26  Conn.  213;  Wright  v. 
Bates,  13  Vt.  341. 

1  Robertson  v.  Stark,  15  JSI.  H.  112;  Williams  v.  Hilton,  35  Me.  547;  Par- 
tridge v.  Swazey,  46  Me.  414;  Hough  v.  Bailey,  32  Conn.  288;  Frink  v. 
Branch,  16  Conn.  260;  Johns  v.  Church,  12  Pick.  557;  Boody  v.  Davis,  20  N. 
H.  140 ;  Warner  v.  Brooks,  14  Gray,  107 ;  McKinster  v.  Babcock,  20  N.  Y. 
375 ;  Kellogg  v.  Frazier,  40  Iowa,  502 ;  Paine  v.  Benton,  32  Wis.  491 ;  Boyd 
v.  Baker,  43  Md.  182  ;  Hurd  v.  Robinson,  11  Ohio  St.  232 ;  Hughes  v.  Edwards, 
9  Wheat.  489 ;  Kimball  v.  Myers,  21  Mich.  276 ;  Aull  v.  Lee,  61  Mo.  160 ; 
Follett  v.  Heath,  15  Wis.  601;  McDaniels  v.  Calvin,  16  Vt.  300;  Booth  v. 
Barnum,  9  Conn.  286  ;  Gilman  v.  Moody,  43  N.  H.  329  ;  Ricketson  v.  Richard- 
son, 16  Cal.  330;  Sheafe  v.  Gerry,  18  N.  H.  245;  Moore  v.  Fuller,  6  Oreg.  272; 
25  Am.  Rep.  524.  And  where  the  description  is  not  sufficiently  particular  to 
make  the  identification  of  the  debt  sure,  parol  evidence  is  admissible  to  connect 
the  debt  with  the  mortgage,  and  supply  the  deficiencies  of  the  description. 
Jackson  v.  Bowen,  7  Cow.  13;  Johns  v.  Church,  12  Pick.  557;  Hall  v.  Tufts, 
18  Pick.  455;  Bell  v.  Fleming,  1  Beasl.  13;  Baxter  v.  Mclntire,  13  Gray,  166; 
Gill  v.  Pinney,  12  Ohio  St.  38 ;  Doe  v.  McLoskey,  1  Ala.  708 ;  Babcock  v.  Lisk, 
57  111.  327;  Aull  v.  Lee,  61  Mo.  160;  N.  H.  Bk.  v.  Willard,  10  N.  H.  210; 
Hurd  v.  Robinson,  11  Ohio  St.  232;  Crafts  v.  Crafts,  13  Gray,  168.  It  has 
been  held  that  it  is  not  necessary  that  the  amount  of  the  debt  be  stated  in  the 
mortgage,  whether  the  sum  be  certain  or  uncertain.  Pike  v.  Collins,  33  Me.  38 ; 
Somersworth  Sav.  Bk  v.  Roberts,  38  N.  H.  22.  Contra,  Hart  v.  Chalker, 
14  Conn.  77 ;  Pearce  v.  Hall,  12  Bush,  209,  which  hold  that  where  the  debt  is 
a  certain  fixed  sum,  the  amount  should  be  stated.  But  although  the  amount 
need  not  perhaps  be  stated  in  the  mortgage,  means  must  be  provided  in  it,  by 
way  of  reference  to  other  papers  or  records,  for  ascertaining  the  amount.  Thus 
mortgages  have  been  held  good,  where  they  intended  to  secure  a  general  in- 
debtedness, such  as,  "  what  I  may  owe  on  book,"  "  all  the  notes  or  agreements- 

217 


§    310  MORTGAGES.  [PART   I. 

sonal  obligation,  which  runs  parallel  with,  but  is  independ- 
ent of,  the  mortgage.  The  former  obligation  depends  upon 
the  privity  of  contract,  and  binds  only  the  mortgagor  and 
his  persona]  representatives.  The  latter  is  an  obligation  in 
rem,  resting  upon  the  privity  of  estate  in  the  mortgaged 
land,  and  binds  the  land  in  whosesoever  hands  it  may  come. 
But  for  the  support  of  the  mortgage,  the  personal  obliga- 
tion need  not  exist;  that  is,  the  debt  need  not,  independ- 
ently of  the  mortgage,  be  enforceable  at  law.  Thus  a  mort- 
gage by  husband  and  wife  of  the  wife's  lands,  to  secure  the 
note  of  the  wife,  would  be  good,  even  though  the  wife's 
contracts  are  held  to  be  otherwise  absolutely  void.1     So  alsc 

I  now  owe,"  "all  sums  that  the  mortgagee  may  become  liable  to  pay,"  ha 
open  book  account,  and  the  like.  Merrills  v.  Swift,  18  Conn.  257 ;  Shirras  v. 
Caig,  7  Cranch,  34 ;  Lewis  v.  De  Forrest,  20  Conn.  427 ;  Seymour  v.  Darrow, 
31  Vt.  142 ;  Vanmeter  v.  Vanmeter,  3  Gratt.  148 ;  Fisher  v.  Otis,  3  Chand.  83 ; 
Machette  v.  Wanless,  1  Col.  225;  Booth  v.  Barnum,  9  Conn.  286;  DeMott  v. 
Benson,  4  Edw.  Ch.  297;  U.  S.  v.  Sturges,  1  Paine,  525;  Mix  v.  Cowles,  20 
Conn.  420 ;  Esterly  v.  Purdy,  50  How.  Pr.  350 ;  Emery  v.  Owings,  7  Gill,  488 ; 
Mich.  Ins.  Co.  v.  Brown,  11  Mich.  265.  But  a  debt  must,  to  at  least  a  reason- 
able degree,  conform  to  the  particulars  of  the  description,  in  order  to  be  cov- 
ered by  the  mortgage.  Doyle  v.  White,  26  Me.  341 ;  Storms  v.  Storms,  3 
Bush,  77;  Walker  v.  Paine,  31  Barb.  213;  Follett  v.  Heath,  15  Wis.  601; 
Hall  v.  Tufts,  18  Pick.  455 ;  Babcock  v.  Lisk,  57  111.  327.  But  see  Baxter  v. 
Mclntire,  13  Gray,  168.  In  Maryland  and  New  Hampshire,  there  are  statutes 
requiring  the  amount  of  the  debt  intended  to  be  secured  to  be  stated  in  the 
mortgage.  Pub.  Lien  Laws  (Md.),  1860,  art.  64,  sect.  2 ;  Gen.  Stats.  N.  H. 
253 ;  and  where  the  mortgage  is  for  future  advances,  the  amount  must  be 
limited.  Wilson  v.  Russell,  13  Md.  494;  Leeds  v.  Cameron,  3  Sumn.  488; 
Bank  v.  Willard,  10  N.  H.  210.  Generally  the  amount  of  the  advances  need 
not  be  stated,  provided  it  can  be  otherwise  ascertained  by  the  description. 
Allen  v.  Lathrop,  46  Ga.  133 ;  Crane  v.  Deming,  7  Conn.  387 ;  U.  S.  v.  Hooe, 
3  Cranch,  73;  Shirras  v.  Caig,  7  Cranch,  34,  Hubbard  v.  Savage,  8  Conn.  215; 
Faye  v.  Bank  of  111.,  11  111.  357;  Hughes  v.  Worley,  1  Bibb,  200,  and  other 
cases  cited  supra. 

1  Brookings  v.  White,  49  Me.  479 ;  Crooker  v.  Holmes,  55  Me.  195 ;  20  Am. 
Rep.  687;  Wyman  v.  Brown,  50  Me.  150;  Bcals  v.  Cobb,  51  Me.  348;  Ellis 
Kinyon,  25  Ind.  136;  Van  Cott  v.  Heath,  9  Wis.  516;  Hubble  v.  Wright,  23 
Ind.  322;  Hoffey  v.  Carey,  73  Pa.  St.  433;  Neimcewitz  v.  Sohn,  3  Paige,  643; 
Story's  Eq.  Jur.,  sect.  1399 ;  Brigham  v.  Potter  14  Gray,  522 ;  Taylor  v.  Page, 
6  Allen,  86;  Bucklin  v.  Bucklin,  1  Abb.  Pr.  242;  see  contra,  Heburn  v.  War- 
ner, 112  Mass.  271 ;  17  Am.  Rep.  86. ' 
218 


<CH.  X  ]  MORTGAGES.  §    310 

is  the  mortgage  good  if  the  Statute  of  Limitations  has  run 
against  the  debt.  And  it  may  be  stated  generally,  that  the 
personal  liability  of  the  mortgagor  for  the  mortgage  debt  is 
not  essential  to  the  validity  of  the  mortgage,  although  its 
absence  may  constitute  a  circumstance  from  which  it  might 
be  inferred  that  the  transaction  was  intended  to  be  a  condi- 
tional sale,  instead  of  a  mortgage.1     It  is  usual  for  the  debt 

©     © 

to  be  contained  in  a  separate  writing  as  a  bond  or  note ;  but 
that  is  not  necessary  since  the  acknowledgment  of  the  debt 
in  the  mortgage  will  be  a  sufficient  Compliance  with  the  pro- 
visions of  the  Statute  of  Frauds.  Nor  is  it  necessary  that 
the  recital  of  the  debt  in  the  mortgage  should  correspond  in 
-every  respect  with  the  instrument  of  indebtedness.     Any 

1  Flagg  v.  Mann,  2  Sumn.  534;  Rich  v.  Doane,  35  Vt.  129;  Haines  v. 
Thompson,  70  Pa.  St.  442;  Ball  v.  Wyeth,  8  Allen,  278;  Flint  v.  Sheldon,  13 
Mass.  443 ;  Glover  v.  Payn,  19  Wend.  518 ;  Holmes  v.  Grant,  8  Paige  Ch.  243 ; 
Mills  v.  Darling,  43  Me.  565;  Murphy  v.  Calley,  1  Allen,  108;  Swetland 
v.  Swetland,  3  Mich.  ,482;  Dougherty  v.  McColgan,  6  Gill  &  J.  285;  Van 
Brunt  v.  Mismer,  8  Minn.  232;  Ferris  v.  Crawford,  2  Denio,  595;  Weed  v. 
€oville,  14  Barb.  242 ;  Hickox  v.  Lowe,  10  Cal.  197 ;  Brant  v.  Robertson,  16 
Mo.  129;  Salisbury  v.  Philips,  10  Johns.  57;  Elder  v.  Rouse,  15  Wend.  218; 
Conway  v.  Alexander,  7  Crunch,  218 ;  Stephens  v.  Sherrod,  6  Texas,  294 ;  Bank 
of  Mt.  Pleasant  v.  Sprigg,  1  McLean,  178 ;  Bacon  v.  Brown,  17  Conn.  29 ;  Scott 
v.  Fields,  7  Watts,  360;  Hill  v.  Eliot,  12  Mass.  26;  Miami  Ex.  Co.  v.  U.S. 
Bank,  Wright  (Ohio),  252;  Drummond  v.  Richards,  2  Munf.  337;  Floyer  v. 
Lavington,  1  P.  Wms.  268;  King  v.  King,  3  P.  Wms.  358;  Mitchell  v.  Burn- 
ham,  44  Me.  286.  Where  there  is  no  separate  obligation  to  pay  the  debt,  in 
order  that  there  may  be  a  personal  liability  upon  the  mortgagor,  the  mortgage 
must  contain  a  covenant  for  payment,  or  at  least  an  acknowledgment  of  the 
existence  of  the  debt.  Brown  v.  Cascaden,  43  Iowa,  103 ;  Elder  v.  Rouse,  15 
Wend.  218 ;  Yates  v.  Aston,  4  Q.  B.  182 ;  Goodwin  v.  Gilbert,  9  Mass.  510. 
That  the  mortgage  may  be  enforced,  even  after  the  debt  has  been  barred  by 
the  Statute  of  Limitations,  see  Thayer  v.  Mann,  19  Pick.  537;  Hughes  v. 
Edwards,  9  Wheat.  489;  Elkins  v.  Edwards,  8  Ga.  326;  Wood  v.  Augustine, 
61  Mo.  46;  Eichman  v.  Aiken,  25  Vt.  324;  Kellar  v.  Sinton,  14  B.  Mon.  307; 
Hough  v.  Bailey,  32  Conn.  288;  Birnie  v.  Main,  29  Ark.  591;  Knox  v.  Galli- 
gan,  21  Wis.  470;  Fisher  v.  Mossman,  11  Ohio  St.  42;  Nevitt  v.  Bacon,  32 
Miss.  212;  Walterrnire  v.  Westover,  14  N.  Y.  20;  Heyer  v.  Pruyn,  7  Paige, 
405;  Crocker  v.  Holmes,  65  Me.  195;  contra,  Lord  v.  Morris,  18  Cal.  482; 
Duty  v.  Graham,  12  Texas,  427;  Gower  v.  Winchester,  33  Iowa,  303;  Chick 
r.  Willotts,  2  Kan.  384;  Hagan  v.  Parsons,  67  111.  170. 

219 


§    311  MORTGAGES.  [PART   I~ 

immaterial  variation  would  not  affect  its  validity,  and  if 
the  variance  was  material,  as  where  the  amount  was  mis- 
stated, the  mortgage  would  be  good,  at  least  to  the  amount 
stated.1 

§   311.   Mortgages  for  the  support  of  the  mortgagee. — 

There  is  a  class  of  mortgages  which,  instead  of  being  given 
as  security  for  the  payment  of  a  debt,  are  conditioned  to> 
provide  and  secure  the  support  of  the  mortgagee  or  some 
other  person.  The  obligation  to  support,  unless  it  is 
imposed  upon  all  claiming  under  the  mortgagor,  is  a  per- 
sonal one,  and  will  prevent  his  alienation  of  the  mortgaged 
premises,  or  their  sale  under  execution,  except  by  the  con- 
sent of  the  mortgagee.2  Neither  is  the  mortgagee's  interest 
assignable,  for  the  benefit  derived  from  the  mortgage  is  of 
a  personal  nature.3  If  the  mortgagor  fails  to  perform  the 
condition  through  his  inability  to  furnish  the  support,  he 
may  redeem  the  land  by  the  payment  of  a  sum  of  money, 

1  Russell  v.  Southard,  12  How.  (U.  S.)  139;  Smith  v.  People's  Bank,  24 
Me.  185;  Mitchell  v.  Barnham,  44  Me.  246;  Brookings  v.  White,  49  Me.  483; 
Brown  v.  Dewey,  1  Sandf.  Ch.  56;  Jaques  v.  Weeks,  7  Watts,  268;  Wharf 
v.  Howell,  5  Bing.  499;  Rice  v.  Rice,  4  Pick.  349;  Hickox  v.  Lowe,  10  CaL 
197;  Whitney  v.  Buckman,  43  Cal.  536.  As  to  variations,  see  Cushman  v. 
Luther,  53  N.  H.  5G2;  Hough  v.  Bailey,  32  Conn.  289;  Kimball  v.  Myers,  21 
Mich.  276;  Stoddart  v.  Hart,  23  N.  Y.  556;  Large  v.  Van  Doren,  14  N.  J.  Eq. 
203;  McGready  v.  McGready,  17  Mo.  597;  Chester  v.  Wheelwright,  5  Conn. 
562,  and  cases  cited  supra,  note  proceeding  note. 

2  Bryant  v.  Erskine,  55  Me.  156;  Mitchell  v.  Burnham,  57  Me.  322;  Beth- 
lehem v.  Annis,  40  N.  H.  34;  Flanders  v.  Lamphear,  9  N.  H.  201;  Dearborn 
v.  Dearborn,  9  N.  H.  117;  Brown  v.  Leach,  35  Me.  41;  Rhodes  v.  Parker,  lfr 
N.  H.  83 ;  Eastman  v.  Batchelder,  36  N.  H.  141 ;  Marsh  v.  Austin,  1  Allen,  235; 
Austin  v.  Austin,  9  Vt.  420;  Daniels  v.  Eisenlord,  10  Mich.  455;  Wales  v. 
Mellen,  1  Gray,  512;  Soper  v.  Guernsey,  71  Pa.  St.  224.  Until  condition  is 
broken,  the  mortgagor  is  entitled  to  possession.  Flanders  v.  Parker,  9  N.  H. 
201 ;  Soper  v.  Guernsey,  sicp?-a;  and  other  cases  sup/'a.  Sometimes  the  condi- 
tion is  in  the  alternative,  to  support  the  mortgagee  or  to  pay  a  stipulated  sum. 
In  that  case,  the  mortgagor  has  the  right  to  elect  within  a  reasonable  time,  and 
both  parties  are  bound  by  his  election.  Bryant  v.  Erskine,  supra ;  Soper  Ot 
Guernsey,  supra;  Furbish  v.  Sears,  2  Cliff.  454. 

3  Bethlehem  v.  Annis,  40  N.  H.  34;  Bryant  v.  Erskine,  55  Me.  153. 

220 


CH.  X.]  MORTGAGES.  §    312 

which  would  be  equivalent  to  the  support  to  be  rendered.1 
Usually  the  mortgage  specifies  the  place  where  the  support 
is  to  be  furnished;  but  where  it  is  silent  on  that  subject, 
the  law  requires  that  it  should  be  tendered  in  some  place 
convenient  to  both  mortgagor  and  mortgagee.  But  if  they 
are  residing  in  the  same  locality,  or  on  the  same  land,  the 
mortgagor  cannot  insist  upon  supplying  it  at  his  own  table, 
or  in  his  own  house.2  These  mortgages  are  seldom  found 
in  actual  practice,  and  by  a  reference  to  the  cases  cited  be- 
low it  will  be  observed,  that  they  have  obtained  a  greater 
prevalence  in  the  New  England  States  than  elsewhere.3 

§  312.  What  may  be  mortgaged. — Any  vested  interest 
or  estate  in  lands  is  capable  of  being  mortgaged.  An  estate 
for  years  or  for  life  can  be  mortgaged  as  well  as  as  the  fee. 
So  also  can  a  vendee  in  possession  under  a  parol  or  written 
contract  of   sale.4     And  likewise  are  the  interests  of  the 


1  Bryant  v.  Erskine,  55  Me.  153;  Austin  v.  Austin,  9  Vt.  42;  Bethlehem  v. 
Annis,  40  N.  H.  44;  Wilder  v.  Whittemore,  15  Mass.  262;  Fiske  v.  Fiske,  20 
Pick.  499 ;  Hoyt  v.  Bradley,  27  Me.  242.  But  it  has  been  held  that  no  such 
right  of  redemption  exists  ;  that  where  the  condition  calls  for  the  support  of 
the  mortgagee  or  some  other  person,  the  land  cannot  bo  redeemed  by  the  pay- 
ment of  a  sum  of  money.  Soper  v.  Guernsey,  71  Pa.  St.  219.  See  also, 
Evans  v.  Norris,  6  Mich.  369;  Hawkins  v.  Clermont,  15  Mich.  513;  and  it  is 
said  to  rest  in  the  discretion  of  the  court,  whether  such  relief  shall  be  granted. 
Henry  v.  Tupper,  29  Vt.  358 ;  Dunklee  v.  Adams,  20  Vt.  415.  Upon  the 
breach  of  the  condition,  the  mortgagee  may  enter  into  possession,  until  the 
mortgage  is  redeemed  or  foreclosed.  Flanders  v.  Lamphear,  9  N.  H.  201 ; 
Eastman  v.  Batchelder,  36  N.  H.  141.  The  mortgage  may  be  foreclosed  in 
the  same  manner  as  other  mortgages.  Marsh  v.  Austin,  1  Allen,  235 ;  Daniels 
v.  Eisenlord,  10  Mich.  454. 

2  Holmes  v.  Fisher,  13  N.  H.  9 ;  Flanders  v.  Lamphear,  sitpra ;  Thayer  v. 
Richards,  19  Pick.  398;  Pettee  v.  Case,  2  Allen,  546;  Hubbard  v.  Hubbard,  12 
Allen,  586;  Jenkins  v.  Stetson,  9  Allen,  128;  Rhoades  v.  Parker,  10  N.  H.  83; 
Fiske  v.  Fiske,  20  Pick.  499;  Wilder  v.  Whittemore,  15  Mass.  262. 

3  See  cases  cited  in  notes  1  and  2,  supra. 

*  Lanfair  v.  Lanfair,  18  Pick.  304 ;  Attorney-General  v.  Parmort,  5  Paige, 
620;  Hogan  v.  Brainard,  45  Vt.  294;  Phila.,  etc.,  K.  R.  v.  Woelpper,  64  Pa.  St. 
371 ;  3  Am.  Rep.  596 ;  John  v.  Nut,  19  Wend.  559 ;  Wilson  v.  Wilson,  32  Barb 

221 


§    311  MORTGAGES.  [PART   I. 

mortgagor  and  mortgagee,  in  whatever  light  they  may  be 
held,  possible  subjects  of  a  mortgage.  Where  the  mort- 
gagee conveys  the  estate  by  way  of  a  mortgage,  his  mortga- 
gee takes  it  subject  to  the  mortgagor's  right  to  redeem  ;  but 
in  such  a  case  notice  to  the  mortgagor  of  the  second  mort- 
gage  by  the  mortgagee  would  require  the  mortgagor  ta 
make  payment  to  the  sub-mortgagee,  so  that  he  might  pro- 
tect his  interests  against  the  mortgagee.1  And  where  the 
mortgagor  mortgages  his  equity  of  redemption,  the  second 
mortgage  has  all  the  rights  of  the  first  mortgagee,  except 
that  he  can  only  satisfy  his  debt  out  of  the  mortgaged  prop- 
erty after  the  prior  mortgagee  has  received  payment  in  full.2 
The  franchise  of  a  railroad  corporation  can  be  mortgaged* 
and  the  mortgage  will  cover  what  ever  real  property  may 
be  acquired  by  the  corporation  after  the  execution  of 
the  mortgage,  and  used  in  the  exercise  of  the  franchise. 
Whether  the  rolling  stock  of  a  railroad  will  pass  with  a 
mortgage  of  its  franchise  depends  upon  the  further  ques- 
tion, whether  such  property  is  held  to  be  real  or  personal,  in 


328;  Neligh  v.  Mechenor,  11  N.J.  Eq.  539;  Sinclair  v.  Armitage,  1  Beasl.  174; 
Baker  v.  Bishop  Hill  Colony,  45  111.  264;  Bull».  Sykes,  7  Wis.  449;  Holbrook 
i7.  Betton,  5  Fla.  99 ;  Mowry  v.  Wood,  12  Wis.  413  ;  Hosrner  v.  Carter,  68  111.  98 ; 
Van  Rensselaer  v.  Dennison,  35  N.  Y.  393;  KidJ  v.  Teeple,  22  Cal.  265; 
Hutchins  v.  King,  1  Wall.  53;  Miller  v.  Tipton,  6  Blaekf.  238;  Jarvis  v- 
Dutcher,  16  Wis.  307;  Whitney  v.  Buckman,  13  Cal.  536.  But  a  mere- 
possibility,  not  coupled  with  an  interest,  or  a  personal  right,  such  as  the  right 
of  pre-emption,  cannot  be  made  the  subject  of  a  mortgage.  Skipper  v.  Stokes, 
42  Ala.  255;  Bayler  v.  Commonwealth,  40  Pa.  St.  37  ;  Low  v.  Pew,  108  Mass- 
347;  Purcell  v.  Mather,  35  Ala.  570;  Penn  v.  Ott,  12  La.  An.  233;  Gilbert  v- 
Penn,  12  La.  An.  235.  But  land  held  by  right  of  pre-emption  may  be  mort- 
gaged.   Whitney  v.  Buckman,  13  Cal.  536. 

1  Henry  v.  Davis,  7  Johns.  Ch.  40;  Johnson  v.  Blydenburgh,  31  N.  T.  432; 
Graydon  v.  Church,  7  Mich.  36;  Cutts  v.  York  Mfg.  Co.,  18  Me.  190;  Power 
p.  Lester,  23  N.  Y.  527;  Murdock  v.  Chapman,  9  Gray,  156;  Coffin  v.  Loring, 
9  Allen,  154;  Slee  v.  Manhattan  Co.,  1  Paige,  48;  Hoyt  v.  Martense,  16  N.  Y. 
231  ;  Solomon  v.  Wilson,  1  Whart.  241  ;  Brown  v.  Tyler,  8  Gray,  135. 

2  This  rule  is  so  general  and  so  w  II  recognized,  that  no  special  authority 
need  be  cited  in  support  of  it.     See  post,  sects.  318,  334,  338,  339. 

'2'22 


CH.  X.]  MORTGAGES.  §  311 

regard  to  which  the  courts  have  rendered  contrary  decisions. 
If  the  rolling  stock  is  considered  to  be  realty,  it  will  pass 
with  the  niort«;ao;e,  otherwise  it  will  not.1 

1  Pierce  v.  Emery,  32  N.  H.  484;  Hoyle  v.  Plattsburg,  etc.,  K.  R.,  64  N.  Y. 
314;  Willink  v.  Morris  Canal,  3  Green  Ch.  377;  Galveston  R.  R.  v.  Cowdrey„ 
1 1  Wall.  481 ;  Dunham  v.  Railway  Co.,  1  Wall.  254 ;  Rennock  v.  Coe,  23  How. 
(U.  S.)  117  ;  Benjamin  o.  Elmira,  etc.,  R.  R.  Co.,  54  N.  Y.  675 ;  Howe  v.  Free- 
man, 14  Gray,  566;  Morrill  v.  Noyes,  56  Me.  458;  Emerson  v.  European,  etc. 
R.  R.,  67  Me.  387 ;  24  Am.  Rep,  39 ;  Pierce  v.  Mil.  R.  Co.,  24  Wis.  551 ;  1  Am. 
Rep.  203;  Coopers  v.  Wolf,  15  Ohio  St.  523;  Sillers  v.  Lester,  48  Miss.  513; 
Phillips  v.  Winslow,  18  B.  Mon.  431 ;  Coe  v.  McBrown,  22  Ind.  252 ;  Rowan 
v.  Sharp's  Rifle  Co.,  29  Conn.  282;  Phila.,  etc.,  R.  R.  v.  Woelpper,  64  Pa.  St. 
366 ;  3  Am.  Rep.  596  ;  Chew  v.  Barret,  11  Serg.  &  R.  389 ;  Parkhurst  v.  North- 
ern, etc.,  R.  Co.,  19  Md.  472.  But  only  so  much  of  the  franchise  will  pass  to 
the  mortgagee,  as  is  necessary  to  make  the  grant  beneficial  to  him.  Eldridge- 
v.  Smith,  34  Vt.  484.  As  to  whether  rolling-stock  is  real  or  personal  property, 
see  ante,  sect.  2. 

223 


SECTION  II. 

THE  RIGHTS  AND  LIABILITIES  OF  MORTGAGORS  AND  MORTGAGEES. 

Section  318.  The  mortgagor's  interest. 

319.  The  mortgagee's  interest. 

320.  Devise  of  the  mortgage 

321.  Merger  of  interests. 

322.  Possession  of  mortgaged  premises. 

323.  Special,  agreements  in  respect  to  the  possession. 

324.  Rents  and  profits. 

325.  Mortgagee's  liability  for  rents  received. 
826.  Tenure  between  mortgagor  and  mortgagee. 

327.  Insurance  of  the  mortgaged  premises. 

328.  Assignment  of  the  mortgage. 

329.  Common-law  assignment. 

330.  Assignment  under  the  lien  theory. 

331.  Assignment  of  the  mortgagor's  interest. 

332.  Rights  and  liabilities  of  assignees. 

333.  Effect  of  payment  or  tender  of  payment 

334.  Who  may  redeem. 

335.  What  acts  extinguish  the  mortgage. 

336.  The  effect  of  a  discharge. 

337.  "When  payment  will  work  an  assignment. 

338.  Registry  of  mortgages,  and  herein  of  priority. 

339.  Rule  of  priority  from  registry,  its  force  and  effect. 

340.  Registr}-  of  assignments  of  mortgages  and  equities  of  redemption. 

341.  Tacking  of  mortgages. 

342.  Priority  in  mortgages  for  future  advances. 

§  318.  The  mortgagor's  interest.  —  Whatever  may  be 
the  view  taken  in  any  particular  State  of  the  character  of  a 
mortgage,  whether  it  is  construed  as  a  conveyance  of  an 
estate  in  lands,  or  only  the  grant  of  a  lien,  the  mortgagor's 
interest  before  condition  broken  is  a  legal  estate,  the  only 
difference  being,  that  under  the  common-law  theory  of 
the  mortgage,  it  is  an  estate  in  reversion,  or  more 
strictly  a  possibility  of  reverter,  while  under  the  lien 
theory  it  is  a  present  vested  estate,  only  liable  to  be 
224 


CH.  X.]       MORTGAGORS  AND  MORTGAGEES.         §  318 

destroyed  by  the  enforcement  of  the  lien.  It  is  subject  to 
the  same  rules  of  conveyance  and  descends  to  the  heirs  as 
any  other  kind  of  real  estate.1  And  it  may  be  stated  as  a 
general  proposition  that,  except  as  against  the  mortgagee, 
he  is  clothed  with  all  the  rights  and  liabilities  which  are 
usually  incident  to  an  estate  in  lands.2  Upon  the  breach  of 
the  condition,  under  the  common-law  theory  that  the  mort- 
gage conveyed  a  defeasible  estate,  the  estate  became  abso- 
lute in  the  mortgagee,  leaving  nothing  in  the  mortgagor  but 
the  equitable  right  to  redeem  the  estate.  This  was  called 
the  equity  of  redemption.  It  was  no  estate  in  the  land, 
simply  an  equitable   right  to  regain  the  legal  estate.     At 

1  Co.  Lit.  205  a,  Butler's  note,  96 ;  Thome  v.  Thorne,  1  Vern.  141 ;  Cas- 
borne  v.  Scarfe,  1  Atk.  60G;  Ledyard  v.  Butler,  9  Paige  Ch.  132;  Chamber- 
lain v.  Thompson,  10  Conn.  243 ;  Baxter  v.  Dyer,  5  Ves.  656 ;  McTaggart  v. 
Thompson,  14  Pa.  St.  149;  Wilkins  v.  French,  20  Me.  Ill ;  White  v.  Whit- 
ney, 3  Mete.  81 ;  Huckins  v.  Straw,  34  Me.  166;  Bird  v.  Decker,  64  Me.  550; 
Orr  v.  Hadley,  36  N.  H.  575 ;  Kennett  v.  Plummer,  28  Mo.  142 ;  White  v. 
Rittenmyer,  30  Iowa,  272 ;  Wright  v.  Rose,  2  Sim.  &  S.  323 ;  Glass  v.  Ellison, 
9  N.  H.  69 ;  Bourne  v.  Bourne,  2  Hare,  35 ;  Bigelow  v.  Wilson,  1  Pick.  485. 

2  Willington  v.  Gale,  7  Mass.  138;  Taylor  v.  Porter,  7  Mass.  355;  Blaney 
v.  Pearce,  2  Greenl.  132;  Wilkins  v.  French,  20  Me.  Ill ;  Felch  v.  Taylor,  13 
Pick.  133;  Savage  v.  Dooley,  28  Conn.  411 ;  Bird  v.  Decker,  64  Me.  550;  Col- 
lins v.  Torry,  7  Johns.  278;  Orr  v.  Hadley,  30  N.  H.  578;  Schuylkill  Co.  v. 
Thoburn,  7  Serg.  &  R.  411;  Hitchcock  v.  Harrington,  6  Johns.  290;  Assay  v. 
Hoover,  5  Pa.  St.  21 ;  Clark  v.  Reyburn,  1  Kan.  281.  Except  as  against  the 
mortgagee  and  his  privies,  the  mortgagor  may  maintain  actions  to  recover 
possession  or  to  recover  damages  for  waste.  Huckins  v.  Straw,  34  Me.  166 ; 
Stinson  v.  Ross,  51  Me.  556;  Ellison  v.  Daniels,  11  N.  H.  274;  Den  v.  Dimon, 
5  Halst.  156;  Doe  v.  McLoskey,  1  Ala.  708;  Brown  v.  Snell,  6  Fla.  745;  Bal- 
lard v.  Ballardvale  Co.,  5  Gray,  468;  Bird  v.  Decker,  64  Me.  650;  Hall  v. 
Lance,  25  111.  277;  Glass  v.  Ellison,  9  N.  H.  69;  Woods  v.  Hildebrand,  46  Mo. 
284;  2  Am.  Rep.  613.  In  Meyer  v.  Campbell,  12  Mo.  603,  it  was  held  that 
ejectment  will  not  lie  by  the  mortgagor  after  the  breach  of  the  condition. 
And  where  the  mortgagee  has  taken  possession,  an  action  for  waste  cannot  be 
maintained  by  the  mortgagor,  unless  the  inheritance  has  been  injured  by  the 
trespass.  Sparhawk  v.  Bagg,  16  Gray,  583.  The  mortgagor's  widow  has 
dower  in  the  equity,  if  she  has  released  her  dower  in  the  land,  and  may  redeem 
the  land  from  the  mortgagee.  Titus  v.  Neilson,  5  Johns.  Ch.  452;  Van  Duyne 
v.  Thayre,  14  Wend.  233;  Hawley  v.  Bradford,  9  Paige  Ch.  200;  Snow  v. 
Stevens,  15  Mass.  278;  Eaton  v.  Simonds,  14  Pick.  98;  McCabe  v.  Bellows,  7 
Grav,  148 ;  see  post,  sect.  334. 

15  225 


§  318         MORTGAGORS  AND  MORTGAGEES.      [PART  I. 

common    law,   therefore,   the   interest    of    the    mortgagor 

77  O     © 

after  condition  broken,  although  still  considered  real 
estate  and  descendible  to  the  heirs  of  the  mortgagor, 
and  capable  of  alienation  by  the  usual  methods,  could  not 
be  levied  upon  by  creditors.  But  in  this  country  at  the 
present  day  the  equity  of  redemption  is  generally  held  to 
have  all  the  characteristics  and  qualities  of  a  legal  estate, 
and  this  too  in  those  States  whose  courts  still  cling  to  the 
common-law  theory  of  mortgages.  The  equity  is  now  gen- 
erally subject  to  levy  and  sale  under  execution.1 

1  It  is  liable  for  debts.  Cushing  v.  Hurd,  4  Pick.  253 ;  Febeiger  v.  Craig- 
bead,  4  Dall.  151 ;  Perrin  v.  Read,  35  Vt.  2  ;  Dunbar  v.  Starkey,  19  N.  H.  160 ; 
Dadmun  v.  Lamson,  9  Allen,  85 ;  Smith  v.  Sweetser,  32  Me.  246 ;  Clinton  Nat. 
Bank  v.  Manwaring,  39  Iowa,  281 ;  Fox  v.  Harding,  21  Me.  104 ;  White  v. 
Whitney,  3  Mete.  81 ;  Curtis  v.  Root,  20  111.  53  ;  Grace  v.  Mercer,  10  B.  Mon. 
157;  Crow  v.  Tinsley,  16  Dana,  402;  Waters  v.  Stewart,  1  Caines'  Cas.  47; 
Cotten  v.  Blocker,  6  Fla.  1;  Fernald  v.  Linscott,  6  Greenl.  234;  Huntington 
v.  Cotton,  31  Miss.  253;  Wiggin  v.  Heyward,  118  Mass.  514;  Hall  v.  Tunnell, 
1  Houst.  320;  Van  Ness  v.  Hyatt,  13  Pet.  294;  Penderson  v.  Brown,  1  Day, 
93;  Slate  v.  Laval,  4  McCord,  336;  Jackson  v.  Willard,  4  Johns.  41.  At 
common  law,  it  was  not  subject  to  levy  and  sale  under  execution,  although 
perhaps  always  liable  in  equity.  Plunkett  v.  Penson,  2  Atk.  290;  Forth  v. 
Norfolk,  4  Madd.  504 ;  Van  Ness  v.  Hyatt,  13  Pet.  294 ;  Hill  v.  Smith,  2  Mc- 
Lean, 446.  But  in  most  of  the  States  the  courts  have  either  by  their  adjudi- 
cations assumed  that  it  was  a  common-law  right,  or  the  right  has  been  expressly 
given  by  statute.  Statutes  have  been  passed  in  Alabama,  Connecticut,  Florida, 
Illinois,  Massachusetts,  Mississippi,  Maine,  North  Carolina,  South  Carolina,  and 
several  other  States.  2  Washb.  on  Real  Prop.  163.  But  the  mortgagee  cannot 
reduce  the  mortgage-debt  to  judgment,  and  levy  upon  the  equity  of  redemption. 
Lyster  v.  Dolland,  1  Ves.  431 ;  Washburn  v.  Goodwin,  17  Pick.  137;  Atkins 
v.  Sawyer,  1  Pick.  351 ;  Palmer  v.  Foote,  7  Paige  Ch.  437  ;  2  N.  Y.  Rev.  Stat. 
368;  Goring  v.  Shreve,  7  Dana,  67;  Deaver  v.  Parker,  2  Ired.  Eq.  40;  Camp 
v.  Coxe,  1  Dev.  &  B.  52;  Tice  v.  Annin,  2  Johns.  Ch.  12-3;  Powell  v.  Wil- 
liams, 14  Ala.  476;  Barker  v.  Bell,  37  Ala.  358;  Duck  v.  Sherman,  2  Dougl. 
(Mich.)  176 ;  Thornton  v.  Pigg,  24  Mo.  249 ;  Baldwin  v.  Jenkins,  23  Miss- 
206 ;  Waller  v.  Tate,  4  B.  Mon.  529 ;  Hill  v.  Smith,  2  McLean,  446 ;  contra. 
Porter  v.  King,  1  Me.  297 ;  Trimm  o.  Marsh,  58  N.  Y.  599 ;  13  Am.  Rep.  623 ; 
Crooker  v.  Frazier,  52  Me.  406 ;  Freeby  v.  Tupper,  15  Ohio,  467 ;  Pierce  v. 
Potter,  7  Watts,  475.  But  if  the  mortgage-debt  has  been  assigned  to  a  bona 
fide  holder,  without  the  mortgage,  such  assignee  may  levy  upon  the  equity  of 
redemption.  Crane  v.  March,  4  Pick.  131;  Andrews  v.  Fisk,  101  Mass.  424; 
Waller  v.  Tate,  4  B.  Mon.  529.    And  it  has  also  been  held  that  the  first  mort- 

226 


CH.  X.]       MORTGAGORS  AND  MORTGAGEES.         §  320 

§  319.  The  mortgagee's  interest. — Under  the  common- 
law  theory,  the  mortgagee  has  the  freehold  estate  both  be- 
fore and  after  the  breach  of  the  condition.  Before,  it  is  a 
defeasible  estate,  and  after,  an  absolute  estate.  His  inter- 
est, therefore,  was  a  legal  estate,  it  descended  to  his  heirs, 
and  required  the  same  formalities  of  conveyance.1  But 
under  the  lien  theory  he  is  said  to  have  only  a  chattel  in- 
terest until  foreclosure.  The  mortgage  is  not  real  estate,  it 
is  personal  property,  which  descends  with  the  debt  to  the 
personal  representatives.  And  now  the  equity  rule  substan- 
tially prevails,  whether  the  mortgagee's  interest  is  consid- 
ered real  estate  or  personal  property,  and  after  his  death 
the  mortgagee's  personal  representatives  exercise  all  his 
rights  under  the  mortgage,  a  release  or  conveyance  by  the 
heir  having  no  effect  upon  the  rights  of  the  personal  repre- 
sentatives. The  heir  takes  the  mortgage  as  trustee  for  the 
personal  representatives.2 

§  320.  Devise  of  the  mortgage. —  It  has  been  held  that 
a  general  devise  in  terms  of  lands,  tenements  and  heredita- 
ments, in  the  absence  of  any  other  evidence  of  intention, 
will  be  construed  to  cover  the  mortgages  owned  by  the  de- 

gagee  may  levy  upon  the  equity  of  redemption  from  the  second  mortgage. 
Johnson  v.  Stevens,  1  Cush.  431. 

1  2  Washb.  on  Real.  Prop.  96,  97 ;  Co.  Lit.  205  a,  Butler's  note,  96 ;  Jones 
on  Mort.,  sects.  11-59;  see  ante,  sect.  296;  Williams  on  Real  Prop.  422. 

2  Connor  v.  Whitmore,  52  Me.  185;  Collamer  v.  Langdon,  29  Vt.  32;  Taft 
v.  Stevens,  3  Gray,  504  ;  Wilkins  v.  French,  20  Me.  11 ;  Burt  v.  Kicker,  6  Allen, 
78 ;  Douglas  v.  Darin,  57  Me.  121 ;  Kinna  v.  Smith,  2  Green  Ch.  14 ;  Duwey  v. 
Van  Deusen,  4  Pick.  19;  Jackson  v.  DeLancey,  11  Johns.  365;  s.c,  13  Johns. 
535;  Great  Falls  Co.  v.  Worster,  15  N.  H.  412;  Chase  v.  Lockerman,  11  Gill 
&  J.  185;  Barnes  v.  Lee,  1  Bibb.  526;  "White  v.  Rittenmyer,  30  Iowa,  272; 
Norwich  v.  Hubbard,  22  Conn.  587;  Richardson  v.  Hildreth,  8  Cush.  225; 
Webster  v.  Calden,  56  Me.  204;  Smith  v.  Dyer,  16  Mass.  18;  Haskins  v. 
Hawkes,  108  Mass.  379 ;  Palmer  v.  Stevens,  11  Cush.  147 ;  George  v.  Baker,  3 
Allen,  326;  Burton  v.  Hintrager,  18  Iowa,  351 ;  Green  v.  Hunt,  Cooke  (Tenn.), 
344;  Demarest  v.  Wynkoop,  3  Johns.  Ch.  145. 

227 


§    321  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

visor.1  But  those  decisions  are  from  the  English  courts, 
which  sustain  the  common-law  theory  of  mortgages,  and  it 
is  to  be  supposed  that  in  the  States,  in  which  the  lien  theory 
has  been  more  or  less  followed,  a  different  conclusion  would 
be  reached.2 

§  321.  Merger  of  interests.  —  The  interests  of  the  mort- 
gagor and  mortgagee  are  not  separate  and  distinct  titles  to 
the  land.  They  constitute  together  the  one  title,  which  can 
alone  be  predicated  of  property.  When,  therefore,  the  two 
interests  unite  in  one  person,  the  lesser  or  subordinate  in- 
terest will  generally  merge  in  the  greater,  and  be  extin- 
guished. The  mortgagee's  interest  would  be  lost  in  the 
mortgagor's.  But  to  effect  a  merger  of  interests,  they 
must  come  together  in  one  person  at  the  same  time,  and  in 
the  same  character  or  capacity.  A  conveyance  of  the  equity 
to  a  trustee  of  the  mortgagee,  or  to  the  mortgagee  as  trustee 
of  another,  would,  in  neither  case,  cause  a  merger.3  It  is 
also  a  general  rule  in  equity  that  the  union  of  the  two  es- 
tates in  one  person  will  not  be  permitted  to  work  a  merger, 

1  Jackson  v.  Dclancey,  13  Johns.  553-559 ;  Winn  v.  Littleton,  1  Vern.  4 ; 
Galliers  v.  Moss,  9  B.  &  C.  267 ;  Braybroke  v.  Inskip,  8  Ves.  417  n  ;  Co.  Lit. 
205  a,  Butler's  note,  96;  contra,  Casborne  v.  Scarfe,  1  Atk.  605;  Atty.-Gen.  v. 
Vigor,  8  Ves.  276 ;  Strode  v.  Kussell,  2  Vern.  625 ;  Wilkins  a.  French,  20 
Me.  111. 

2  Moore  v.  Cornell,  69  Pa.  St.  3. 

3  Hunt  v.Hunt,  14  Pick.  384;  Lockwood  v.  Sturdevant,  6  Conn.  387;  James 
v.  Morey,  2  Cow.  246;  Barnett  v.  Denniston,  5  Johns.  Ch.  85;  Gardner  v.  As- 
tor,  3  Johns.  Ch.  53;  Stantons  v.  Thompson,  49  N.  H.  272;  White  v.  Hamp- 
ton, 13  Iowa,  259;  Burhans  v.  Hutcheson,  25  Kan.  625;  37  Am.  Rep.  274; 
Wilhelmi  v.  Leonard,  Id.  330;  Gregory  v.  Savage,  32  Conn.  264;  Edgertoni>. 
Young,  43  111.  464;  Shin  v.  Fredericks,  56  HI.  443;  Warren  v.  Warren,  30  Vt. 
530;  Clary  v.  Owen,  15  Gray,  525;  Bean  v.  Boothby,  57  Me.  295;  Purdy  v. 
Huntington,  42  N.  Y.  334 ;  1  Am.  Rep.  532 ;  Barker  v.  Flood,  103  Mass.  474 ; 
Model  Lodging  House  Ass'n  v.  City  of  Boston,  114  Mass.  133;  Pratt  v.  Bank 
of  Bennington,  10  Vt.  293;  Champney  v.  Coope,  32  N.  V.  543;  Sherman  v. 
Abbott,  18  Pick.  448 ;  Bailey  v.  Richardson,  15  E.  L.  &  E.  218 ;  Dickason 
v.  Williams,  129  Mass.  182 ;  37  Am.  Rep.  316. 

228 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  322 

where,  from  the  circumstances,  an  injury  would  result  to 
parties  interested  in  either.  The  existence  of  an  outstand- 
ing second  mortgage  would  prevent  a  merger  in  the  hands 
of  a  person  holding  the  first  mortgage  and  the  equity  of  re- 
demption.1 And  this  is  an  almost  universal  rule,  that  equity 
will  keep  alive  the  mortgage  in  the  hands  of  the  holder  of 
the  equity  whenever  its  merger  would  do  injury  to  one  in 
any  way  interested  therein.  Where,  however,  it  is  the  plain 
intention  of  the  parties  that  a  merger  should  result  from 
the  union  of  the  interests,  equity  will  not  interfere  in  their 
behalf.2 

§  322.  Possession  of  the  mortgaged  premises.  —  It  is  a 

general  custom  in  this  country  for  the  mortgagor  to  retain 
possession  until  the  breach  of  the  condition,  and  even  after- 
wards it  is  not  usual  for  the  mortgagee  to  enter  into  posses- 

1  Wade  v.  Howard,  6  Pick.  492 ;  s.  c,  1 1  Pick.  289 ;  Evans  v.  Kimball,  1  Al- 
len, 240 ;  Cook  v.  Brightly,  46  Pa.  s.  c,  439 ;  Frazee  v.  Inslee,  1  Green  Ch.  239 ; 
Vannice  v.  Bergen,  16  Iowa,  502;  Lyon  v.  Mcllvaine,  24  Iowa,  12;  Grover  v. 
Thatcher,  4  Gray,  526;  Bell  v.  Woodward,  34  N.  H.  90;  Hancock  v.  Han- 
cock, 22  N.  Y.  568 ;  Hill  v.  Pixley,  63  Barb.  200 ;  Warren  v.  Warren,  30  Vt. 
530;  Land  v.  Lane,  8  Mete.  517;  Lyon  v.  Mcllvaine,  24  Iowa,  9;  Grellet  v. 
Heilshorn,  4  Nev.  526;  New  England  Jewelry  Co.  v.  Merriam,  2  Allen,  390; 
Dutton  v.  Ives,  5  Mich.  515;  Stantons  v.  Thompson,  49  N.  H.  272. 

2  Forbes  v.  Moffatt,  18  Ves.  384;  Gibson  v.  Crehore,  3  Pick.  475;  Hunt  v. 
Hunt,  14  Pick.  374 ;  Hatch  v.  Kimball,  14  Me.  9 ;  Bell  v.  Woodward,  34  N.  H- 
90;  St.  Paul  v.  Viscount  Dudley  and  Ward,  15  Ves.  167;  Grover  v.  Thatcher, 
4  Gray,  526  ;  Duncan  v.  Drury,  9  Pa.  St.  332 ;  Marshall  v.  Wood,  5  Vt.  254 ; 
Walker  v.  Baxter,  26  Vt.  710;  Robinson  ?>.  Leavitt,  7N.  H.  73;  Moore  v.  Bea- 
som,  44  N.  H.  215 ;  Hinds  v.  Ballou,  Id.  620 ;  Millspaugh  v.  McBride,  7  Paige 
Ch.  509 ;  Judd  v.  Seekins,  62  N.  Y.  266  ;  Bascom  v.  Smith,  34  N.  Y  320;  Van- 
derkemp  v.  Shelton,  11  Paige  Ch.  28 ;  Loomer  v.  Wheelwright,  3  Sandf.  Ch. 
157;  Simonton  v.  Gray,  34  Me.  50;  Van  Wagener  v.  Brown,  26  N.  J.  L.  196; 
Duncan  v.  Smith,  31  N.  J.  L.  325 ;  Holden  v.  Pike,  24  Me.  437 ;  Mallory  v. 
Hitchcock,  29  Conn.  127;  Dutton  v.  Ives,  5  Mich.  515;  Edgerton  v.  Young, 
43  111.  464;  Davis  v.  Pierce,  10  Minn.  376;  Carter  v.  Taylor,  3  Head,  30; 
White  v.  Hampton,  13  Iowa,  259;  Snyder  v.  Snyder,  6  Mich.  470;  Wallace  v. 
Blair,  1  Grant  Cas.  75;  Brown  v.  Lapham,  3  Cush.  551;  Eaton  v.  Simonds, 
14  Pick.  98;  James  v.  Morev,  2  Cow.  285;  Savage  v.  Hall,  12  Gray,  364; 
Thompson  v.  Chandler,  7  Me.  377 ;  Fletcher  v.  Chase,  16  N.  H.  42  ;  Bullard  v. 
Leach,  27  Vt.  491. 

229 


§  322         MORTGAGORS  AND  MORTGAGEES.       [PART  I. 

sion  until  the  land  has  been  decreed  to  him  by  foreclosure. 
But  in  those  States  where  the  common-law  theory  prevails 
in  its  full  force,  the  mortgagee  may  enter  into  possession 
at  any  time  after  the  delivery  of  the  mortgage.  He  pos- 
sesses the  freehold,  and  can  exercise  all  the  rights  of  owner- 
ship over  the  land.  And  if  the  mortgagor  should  resist  his 
demand  for  possession,  he  may  bring  an  action  of  ejectment 
for  its  recovery.1  But  in  some  of  the  States,  where  the 
common  law  has  been  modified  in  this  respect  by  statute  or 
judicial  legislation,  the  mortgagor  is  entitled  to  possession 
until  condition  broken,  but  after  condition  broken  the 
mortgagee  has  the  right  of  possession,  the  same  as  at  com- 
mon law.2     In  other  States,  where  the  lien  theory  has  met 

1  Erskine  v.  Townshend,  2  Mass.  493;  Goodwin  v.  Richardson,  11  Mass. 
473;  Duval  v.  McLoskey,  1  Ala.  708;  Knox  v.  Easton,  38  Ala.  345;  Bradley 
v.  Fuller,  23  Pick.  1 ;  Page  v.  Robinson,  10  Cush.  99;  Wales  v.  Miller,  1  Gray, 
512;  Chamberlain  v.  Thompson,  10  Conn.  243:  Middletown  Sav.  Bk.  v. 
Bates,  11  Conn.  519;  Blaney  v.  Bearce,  2  Greenl.  132;  Furbish  v.  Good- 
win, 29  N.  H.321 ;  Harper  v.  Ely,  10  111.  581 ;  Delahay  v.  Clement,  3  Scam.  202 ; 
Karnes  v.  Lloyd,  52  111.  113;  Chellis  v.  Stearns,  22  N.  H.  312;  Howard  v. 
Houghton,  64  Me.  445;  Stewart  v.  Barrow,  7  Bush,  368;  Sedman  v.  Sanders, 
2  Dana,  68;  Rev.  Stat.  Me.  (1871),  ch.  90,  sect.  2;  Treat  o.  Pierce,  53  Me.  77  ; 
Brown  v.  Stewart,  1  Md.  Ch.  87;  Sumwalt  v. Tucker,  34  Ml.  89;  Annapolis, 
etc.,  R.  R.  v.  Gault,  39  Md.  115;  Hemphill  v.  Ross,  66  N.  C.  477;  Jackson  v. 
Dubois,  4  Johns.  216;  Jackson  v.  Hull,  10  Johns.  481;  Ellis  v.  Hussey,  66 
N.  C.  501 ;  Tryon  v.  Munson,  77  Pa.  St.  250;  Youngman  v.  R.  R.  Co.,  65  Pa. 
St.  278;  Den  v.  Stockton,  12  N.  J.  L.  322;  Shute  v.  Grimes,  7  Blackf.  1;  Ely 
v.  McGuire,  2  Ohio,  223;  Carpenter  v.  Casper,  6  R.  I.  512  ;  Waterman  v.  Mat- 
teson,  4  R.  I.  539;  Henshaw  v.  Wells,  9  Humph.  568;  Vance  v.  Johnson,  10 
Humph.  214;  Faulkner  v.  Brockenbrough,  4  Rand.  245;  Tripe  v.  Marcy,  39  N. 
H.  439 ;  Trustees  v.  Dickson,  1  Freem.  Ch.  474 ;  May  v.  Fletcher,  14  Pick  525 ; 
Clark  v.  Beach,  6  Conn.  142.  And  he  may  likewise  have  trespass  against  the 
mortgagor,  even  before  condition  broken,  for  waste,  or  for  resisting  his  entry. 
Smith  v.  Johns,  3  Gray,  517;  Northampton  Mills  v.  Ames,  8  Mete.  1;  Page 
v.  Robinson,  10  Cush.  99;  Newall  v.  Wright,  3  Mass.  138;  Furbish  v.  Good- 
win, 29  N.  H.  321 ;  Clark  v.  Bench,  supra. 

2  Cheever  v.  Rutland  &  B.  R.  R.,  39  Vt.  653 ;  Wilson  v.  Hooper,  13  Vt. 
653;  Walcop  v.  McKinney,  10  Mo.  229;  Sutton  v.  Mason,  38  Mo.  120;  Mcln- 
tyre  v.  Whitfield,  13  Smed.  &  M.  88 ;  Kannady  v.  McCarron,  18  Ark.  166 ;  Doe 
v.  Pendleton,  15  Ohio,  735;  Frische  v.  Cramer,  16  Ohio,  125;  Watson  v.  Dick- 
ens, 12  Smed.  &  M.  608;  Reynolds  v.  Canal  &  Banking  Co.  of  N.  0..  30  Ark. 

230 


CH.  X.]       MORTGAGORS  AND  MORTGAGEES.        §  323 

with  more  or  less  favor,  the  mortgagee  is  not  entitled  to 
possession  until  the  mortgage  is  foreclosed  and  the  estate 
made  absolute  in  the  mortgagee.1  And  it  has  been  held  in 
some  of  the  last  class  of  cases  that,  although  the  mortgagor 

©  O     © 

is  lawfully  in  possession,  and  cannot  be  ejected  even  after 
the  condition  has  been  broken,  yet  if  he  delivers  the  posses- 
sion to  the  mortgagee,  he  cannot  by  any  action  regain  it  as 
long  as  the  mortgage  is  not  satisfied.     His  only  remedy  is 

to  redeem  the  mortgage.2 

©  © 

§  323.   Special  agreements  in  respect  to    possession. — 

But  the   right   to    possession    before   foreclosure   may   be 

520;  Hall  v.  Tunnell,  1  Houst.  320;  Newboldv.  Newbold,  1  Del.  Ch.  310;  Hill 
v.  Robertson,  24  Miss.  368;  Johnson  v.  Houston,  47  Mo.  227;  Reddick  v. 
Gressman,  49  Mo.  389;  Pease  v.  Pilot  Knob  Iron  Co.,  49  Mo.  124;  Sanderson 
v.  Price,  1  Zab.  646;  Shields  v.  Lozear,  34  N.  J.  L.  496;  3  Am.  Rep.  256: 
Hagar  v.  Brainerd,  44  Vt.  294  ;  Walker  v.  King,  44  Vt.  601 ;  Allen  v.  Everly, 
24  Ohio  St.  602 ;  Rands  v.  Kendall,  15  Ohio,  671. 

1  Civil  Code  Cal.,  sect.  2927;  Nagle>.  Macy,  9  Cal.  426;  Dutton  v.  War- 
schauer,  21  Cal.  609 ;  Grattan  v.  Wiggins,  23  Cal.  26  ;  Drake  v.  Root,  2  Col. 
685;  Bush  Dig.  of  Stat.  (Fla.)  1872,  p.  611 ;  Vason  v.  Ball,  56  Ga.  268 ;  Elfe  ». 
Cole,  26  Ga.  197;  Davis  v.  Anderson,  1  Ga.  176;  Iowa  Code  (1873),  357;  2  G. 
&  H  Stat.  335  (Ind.) ;  Smith  v.  Parks,  22  Ind.  61 ;  Chase  v.  Abbott,  20  Iowa, 
158;  Dassler's  Stat.  Kan.  (1876),  ch.  68,  sect.  1;  Ducland  v.  Rousseau,  2  La. 
An.  168;  Comp.  Laws  Mich.  (1871)  1775;  Gorham  V.Arnold,  22  Mich.  247; 
Adams  v.  Corriston,  7  Minn.  456 ;  Berthold  v.  Fox,  13  Minn.  501 ;  Kyger  v. 
Ryley,  2  Neb.  20;  Webb  v.  Hoselton,  4  Neb.  308;  2  Rev.  Stat.  N.  T.,  p.  312, 
sect.  57;  Murray  v.  Walker,  31  N.  Y.  390;  Trimm  v.  Marsh,  54  N.  Y.  604; 
Besser  v.  Hawthorne,  3  Oreg.  129;  Thayer  v.  Cranmer,  1  McCord  Ch.  395; 
Nixon  v.  Bynum,  1  Bailey,  148;  Hughes  v.  Edwards,  9  Wheat.  489;  Durand 
'•.  Isaacks,  4  McCord,  54 ;  Wright  v.  Henderson,  12  Texas,  43  ;  Walker  v.  John- 
son, 37  Texas,  127  ;  Word  v.  Trask,  7  Wis.  566.  But  where  the  common-law 
rule  has  been  changed  by  statute,  the  statute  will  not  affect  the  mortgagee's 
right  of  possession  under  the  mortgages  already  in  existence.  The  statute 
will  only  apply  to  future  mortgages.  Blackwood  v.  Van  Vleet,  11  Mich.  252; 
Morgan  v.  Woodward,  1  Ind.  321 ;  Shaw  v.  Hoadley,  8  Blackf.  165. 

2  Hubbell  v.Moulson,  53  N.  Y.  225;  Mickles  v.  Townsend,  18  N.  Y.  584; 
Watson  v.  Spence,  20  Wend.  260;  Den  v.  Wright,  7  N.  J.  L.  175;  Mitchell  v. 
Bogan,  11  Rich.  L.  681 ;  Hennesy  v.  Farrell,  20  Wis.  42;  Stark  v.  Brown,  12 
Wis.  672 ;  Roberts  v.  Sutherlin,  4  Oreg.  219 ;  Pace  v.  Chadderdon,  4  Minn.  49 ; 
Frink  v.  LeKoy,  49  Cal.  314;  Dutton  v.  Warschauer,  21  Cal.  609;  Eyster  v. 
Gaff,  2  Col.  228 ;  Avery  v.  Judd,  22  Wis.  262  ;  Newton  v.  McKay,  30  Mich.  380. 

231 


§    324  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

changed  by  agreement  of  the  parties.  If,  according  to  the 
law,  the  mortgagor  is  entitled  to  possession,  by  agreement 
the  mortgagee  may  be  given  a  right  of  entry  at  any  time 
before  foreclosure  ;  and  if  the  mortgagee  has  by  law  the 
right  of  possession,  his  right  of  entry  may  be  restrained 
until  condition  broken,  or  taken  away  altogether.  If  the 
purposes  and  the  object  of  the  mortgage  require  the  posses- 
sion to  be  given  to  the  party  not  entitled  thereto  by  law, 
the  agreement  to  vest  it  in  him  will  be  implied  from  those 
circumstances.  The  implication  must,  however,  be  a  nec- 
essary one ;  otherwise  nothing  but  an  express  agreement 
will  have  that  effect.1 

§  324.  Rents  and  profits. — Whoever  is  in  actual  pos- 
session is  entitled  to  the  rents  and  profits  issuing  out  of  the 
mortgaged  premises.  If  it  be  the  mortgagor,  he  takes 
them  free  from  any  claim  on  the  part  of  the  mortgagee, 
even  where  he  is  in  possession  by  sufferance  only,  and 
where  the  property  is  not  sufficient  to  satisfy  the  mortgage- 
debt.3     The  mortgagee  is  entitled  to  a  judgment  for  rents 

1  Flagg  v.  Flagg,  11  Pick.  475;  Hartshorn  v.  Hubbard,  2  N.  H.  453 ;  Smith 
v.  Parks,  22  Ind.  61 ;  Brown  v.  Cram,  1  N.  H.  169;  Chase  v.  Abbott,  20  Iowa, 
168;  Wales  v.  Mellen,  1  Gray,  512  ;  Dearborn  v.  Dearborn,  9  N.  H.  117  ;  Clay  " 
v.  Wren,  34  Me.  187 ;  Norton  v.  Webb,  35  Me.  218 ;  Brown  v.  Leach,  35  Me. 
39;  Duval  v.  McLoskey,  1  Ala.  708;  Knox  v.  Enston,  38  Ala.  345;  Fogarty  ?>. 
Sawyer,  17  Cal.  589;  Carroll  v.  Ballance,  26  111.  9;  Chicks  v.  Willetts,  2  Kan. 
384;  Stewart  v.  Barrow,  7  Bush,  368;  Redman  v.  Sanders,  2  Dana,  68;  Brown 
v.  Stewart,  1  Md.  Ch.  87 ;  Leighton  v.  Preston,  9  Gill,  201 ;  George's  Creek 
Coal,  etc.,  Co.  v  Detmold,  1  Md.  237.  But  the  right  will  not  be  implied 
from  a  silent  acquiescence  in  the  mortgagor's  possession,  or  inferred  from  a 
clause  in  the  mortgage  that  the  mortgagee  shall  take  possession  upon  default. 
Stowell  v.  Pike,  2  Greenl.  387;  Brown  v.  Cram,  1  N.  H.  169;  Rogers  v.  Graze- 
brook,  8  Q.  B.  898.  But  see  Jackson  v.  Hopkins,  18  Johns.  487.  Nor  would  a 
parol  agreement  change  the  law  in  reference  to  the  right  of  possession.  Col- 
man  v.  Packard,  16  Mass.  39. 

2  Boston  Bk.  v.  Reed,  8  Pick.  459 ;  Mayo  v.  Fletcher,  14  Pick.  525 ;  Kunkle 
v.  Wolfersberger,  6  Watts,  131;  Noyes  v.  Rich,  52  Me.  115;  Gilman  v.  111.  & 
Miss.  Tel.  Co.,  91  U.  S.  603 ;  Johnson  v.  Miller,  1  Wills,  416 ;  Gelston  v.  Burr, 
11  Johns.  482;  Astor  v.  Turner,  11  Paige,  436;  Mitchell  v.  Bartlett,  52  Barb. 

232 


CH.  X.]       MORTGAGORS  AND  MORTGAGEES.        §  324 

and  profits  from  the  date  of  the  decree  of  foreclosure,  or, 
if  he  has  a  right  to  possession  before  foreclosure,  from  his 
demand  for  possession,  when  he  follows  up  such  demand 
either  by  foreclosure  or  an  action  of  ejectment.1  If  the 
mortgagee  is  in  possession  he  is  entitled  to  the  rents  and 
profits  accruing  after  his  entry.  And  where  the  land  has 
been  leased  by  the  mortgagor,  the  entry  of  the  mortgagee 

319;  Clason  v.  Corley,  5  Sandf.  447;  Wilder  v.  Houghton,  1  Pick.  87;  Pullan 
v.  C.  &  C.  Air  Line  R.  R.,  5  Biss.  237.  It  is  held  in  Massachusetts,  that  if  the 
mortgaged  property  is  not  sufficient  in  value  to  satisfy  the  debt,  after  entry  to 
foreclose  the  mortgagee  may  recover  of  the  mortgagor  for  past  use  and  occu- 
pation. Merrill  v.  Bullock,  105  Mass.  486;  Morse  v.  Merritt,  110  Mass.  458 
And  even  where  the  mortgagor  is  in  possession  by  lawful  right,  if  the  prop- 
erty is  an  insufficient  security,  the  mortgagee  may  apply  for  the  appointment 
of  a  receiver,  and  the  rents  and  profits  accruing  thereafter  will  be  applied  to 
the  liquidation  of  the  debt.  Post  v.  Dorr,  4  Edw.  Ch.  412 ;  Lofsky  v.  Maujer, 
3  Sandf.  Ch.  69;  Astor  v.  Turner,  11  Paige,  436;  Clason  v.  Corley,  5  Sandf. 
Ch.  447 ;  Mitchell  v.  Bartlett,  51  N.  Y.  442 ;  Myers  v.  Estell,  48  Miss.  372 ; 
Douglass  v.  Cline,  12  Bush,  608.  But  to  entitle  the  mortgagee  to  the  appoint- 
ment of  a  receiver,  special  equitable  grounds  must  be  alleged;  for  example, 
that  the  mortgagor  is  insolvent,  and  the  security  insufficient.  If  the  mortgagor 
is  solvent,  or  the  mortgagee  possesses  other  means  of  protecting  himself,  the 
insufficiency  of  the  mortgage  security  will  not  support  an  application  for  a 
receiver.  Bk.  of  Ogdensburg  v.  Arnold,  5  Paige,  40;  Williams  v.  Robinson, 
16  Conn.  517;  Shotwell  v.  Smith,  3  Edw.  Ch.  588;  Quincy  v.  Cheeseman,  4 
Sandf.  Ch.  405;  Cortteyen  v.  Hathaway,  11  N.  J.  Eq.  39;  Hackett  v.  Snow, 
10  Ired.  220;  Oliver  v.  Decatur,  4  Cranch  C.  Ct.  458;  Frisbie  v.  Bateman,  24 
N.  J.  Eq.  28;  Williamson  v.  New  Albany  R.  Co.,  1  Biss.  201 ;  Whitehead  v. 
Wooten,  43  Miss.  523;  Pullan  v.  C.  &  C.  R.  R.,  4  Biss.  35;  First  Nat.  Bk.  v. 
Gage,  79  111.  206 ;  Callanan  v.  Shaw,  19  Iowa,  183 ;  Morrison  v.  Buckner,  1 
Hempst.  442 ;  Syracuse  Bk.  v.  Tallman,  31  Barb.  201. 

1  Wilder  v.  Houghton,  1  Pick.  87;  Mayo  v.  Fletcher,  14  Pick.  525;  Haven 
v.  Adams,  8  Allen,  368;  Northampton  Mills  v.  Ames,  8  Mete.  1;  Hill  v.  Jor- 
dan, 30  Me.  367 ;  Bk.  of  Washington  v.  Hupp,  10  Gratt.  23 ;  Jones  on  Mort.  670. 
This  rule  naturally  can  apply  only  to  strict  foreclosure,  where  the  mortgagee 
is  not  entitled  to  possession  after  default.  And  where  in  strict  foreclosure  a 
certain  time  is  given  after  the  decree,  within  which  the  land  might  still  be  re- 
deemed, the  judgment  for  rents  and  profits  can  only  be  had  after  this  period 
of  redemption.  And  where  the  property  is  sold  under  foreclosure,  the  rents 
and  profits  do  not  accrue  to  the  purchaser  until  the  delivery  of  the  deed  to 
him,  and  perhaps  not  until  he  has  made  a  demand  for  possession  under  his 
deed.  Clason  v.  Corley,  5  Sandf.  Ch.  447  ;  Mitchell  v.  Bartlett,  52  Barb.  319 ; 
Astor  v.  Turner,  11  Paige,  436. 

233 


§    324  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

vests  in  him  the  right  to  call  upon  the  lessee  to  pay  the  rent 
to  him.1  If,  however,  the  lease  be  subject  to  the  mortgage, 
i.e.,  executed  subsequently,  since  there  is  no  privity  of  es- 
tate between  the  mortgagee  and  the  lessee,  either  party  may 
consider  the  lease  defeated  by  the  entry,  and  no  rent  will 
become  due  thereon,  if  either  party  should  so  elect.  And 
any  agreement  between  the  parties  looking  to  a  continuance 
of  the  lease,  is  in  fact  a  new  lease.2  But  where  the  lease 
takes  precedence  to  the  mortgage,  the  entry  of  the  mort- 
gagee will  not  defeat  the  lease  in  any  event.  The  mortgagee 
may,  however,  compel  the  lessee  to  pay  to  him  all  rent  ac- 
cruing after  entry,  which  has  not  been  paid  over  to  the  mort- 
gagor before  the  lessee  received  notice  of  the  execution  of 
the  mortgage.     But  payment  to  the  mortgagor  before  such 

1  Smith  v.  Shepherd,  15  Pick.  147 ;  Stone  v.  Patterson,  19  Pick.  476  ;  Kim- 
ball v.  Lockwood,  6  R.  I.  139;  Russell  v.  Allen,  2  Allen,  42  ;  Welch  v.  Adams, 
1  Mete.  494 ;  Hill  v.  Jordan,  30  Me.  367 ;  Northampton  Mills  v.  Ames,  8  Mete 
1 ;  Turner  v.  Cameron,  5  Exch.  932;  Pope  v.  Biggs,  9  B.  &  C.  245;  Bk.  of 
Washington  v.  Hupp,  10  Gratt.  23. 

2  Russell  v.  Allen,  2  Allen,  44;  Smith  v.  Shepherd,  15  Pick.  147;  Mayo  v. 
Fletcher,  14  Pick.  525;  Watts  v.  Coffin,  11  Johns.  495;  Jones  v.  Clark,  20 
Johns.  51 ;  Jackson  v.  Delancey,  11  Johns.  365 ;  Kimball  v.  Lockwood,  6  R.  I. 
138;  Syracuse  City  Bk.  v.  Tallman,  31  Barb.  207;  Magill  v.  Hinsdale,  6  Conn. 
464;  McKircher  v.  Hawley,  16  Johns.  289;  Hemphill  v.  Giles,  66  N.  C.  512; 
Sanders  v.  Vansickles,  8  N.  J.  L.  315 ;  Pope  v.  Biggs,  9  B.  &  C.  245 ;  Peters  v. 
Elkins,  14  Ohio,  344 ;  Doe  v.  Hales,  7  Bing.  322 ;  Knox  v.  Easton,  38  Ala.  345 ; 
Branch  Bk.  v.  Pry,  23  Ala.  770 ;  Lane  v.  King,  8  Wend.  584 ;  Lynde  v.  Rowe, 
12  Allen,  110;  McDermott  v.  Burke,  10  Cal.  580;  Gartside  v.  Outley,  58  111. 
210;  11  Am.  Rep.  59;  Weaver  v.  Belcher,  3  East,  449;  Rogers  V.Hum- 
phreys, 4  A.  &  E.  299 ;  Higginbotham  e.  Barton,  11  Ad.  &  El.  307 ;  Henshaw  v. 
Wells,  8  Humph.  568;  Morse  v.  Goddard,  13  Mete.  177;  Fields.  Swan,  10 
Mete.  177.  See  Hogsett  v.  Ellis,  17  Mich.  351 :  The  lessees  in  a  subsequent 
lease  must  attorn  in  order  to  be  liable  to  the  mortgagee.  A  mere  notice  to  pay 
rent  will  not  render  them  liable.  But  judgment  for  mesne  profits  may  be  had 
if  they  continue  in  possession  after  demand.  Kimball  v.  Lockwood,  6  R.  I. 
138;  Hill  v.  Jordan,  35  Me.  367;  Northampton  Mills  v.  Ames,  8  Mete.  1; 
Morse  v.  Goddard,  supra;  Field  v.  Swan,  supra;  Rogers  v.  Humphreys,  supra; 
Evans  v.  Elliott,  9  A.  &  E.  342.  But  without  special  agreement  the  accept- 
ance of  rent  from  the  lessee  will  not  bind  the  mortgagee  to  the  terms  and  du- 
ration of  the  original  lease.  It  creates  only  a  tenancy  from  year  to  year. 
Hughes  v.  Bucknell,  8  C.  &  P.  566. 

234 


€H.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  325 

notice,  even  of  rent  in  advance  which  falls  due  afterwards, 
if  bona  fide,  will  constitute  a  good  defence  to  any  action  by 
the  mortgagee.1 

§  325.  Mortgagee's  liability  for  rents  received. — The 

mortgagee  receives  the  rents  and  profits,  not  in  his  own 
right,  but  as  trustee  or  agent  for  himself  and  the  mortgagor. 
After  deducting  the  necessary  expenses  of  managing  the  es- 
tate, he  must  apply  them,  first,  to  the  liquidation  of  the  ac- 
cruing interest,  and  then  of  the  principal  of  the  debt. 
Whatever  surplus  remains  he  holds  in  trust  for  the  mort- 
gagor, and  all  others  claiming  under  him.2     And   although 

1  Kogers  v.  Humphreys,  4  Ad.  &  E.  299;  Moss  v.  Gallimore,  Dougl.  279; 
Fitchburg  Cotton  Co.  v.  Melvin,  15  Mass.  268;  Burden  v.  Thayer,  3  Me.  79; 
Mirick  v.  Hoppin,  118  Muss.  582;  Babcock  v.  Kennedy,  1  Vt.  457;  McKircher 
v.  Hawley,  16  Johns.  2S9;  Russell  v.  Allen,  2  Allen,  42;  Demarest  v.  Willard, 

8  Cow.  206;  Kimball  v.  Lockwood,  6  R.  1.  138 ;  Baldwin  v.  Walker,  21  Conn. 
168;  Coker  v.  Pearsall,  6  Ala.  542;  Henshaw  v.  Wells,  9  Humph.  568;  Myers 
h.  White,  1  Rawle,  353;  Weidner  v.  Foster,  2  Penn.  23;  Hemphill  v.  Giles,  06 
N.  C.  512;  see  De  Nicholls  v.  Saunders,  L.  R.  5  C.  P.  589;  Castleman  v.  Belt, 
2  B.  Mon.  157. 

2  Bailey  v.  Myrick,  52  Me.  136;  King  v.  Ins.  Co.,  7  Cush.  7;  Ten  Eyck  v. 
€raig,  62  N.  C.  406 ;  Clark  v.  Bush,  3  Cow.  151 ;  Harrison  v.  Wysc,  24  Conn. 
1 ;  Reitenbaugh  v.  Ludwick,  31  Pa.  St.  131  ;  Seaver  v.  Durant,  39  Vt.105;  Kel- 
logg v.  Rockwell,  19  Conn.  446;  Hunt  v.  Maynard,  6  Pick.  489;  Thorp  v. 
Feltz,  6  B.  Mon.  6 ;  Breckenridge  v.  Brook,  2  A.  K.  Marsh.  335;  Gibson  v. 
Crehore,  5  Pick.  146;  Davis  v.  Lassiter,  20  Ala.  561 ;  Walton  v.  Wittington, 

9  Mo.  545;  Anthony  v.  Rogers,  20  Mo.  281 ;  McConnell  v.  Holobush,  11  111. 
61 :  Brayton  v.  Jones,  5  Wis.  117 ;  Ten  Eyck  v.  Casad,  15  Iowa,  524;  Hill  v. 
Hewitt,  35  Iowa,  563;  Freytag  v.  Hoeland,  23  N.  J.  Eq.  36;  Anderson  v. 
Lanterman,  27  Ohio  St.  104;  Chapman  v.  Smith,  9  Vt.  153;  Strang  v.  Allen, 
44  111.  428;  Gilman  v.  Wills,  66  Me.  273.  But  the  mortgagee  is  only  account- 
able for  the  rents  and  profits  in  equity,  and  then  only  as  an  incident  to  an  action 
for  foreclosure,  or  for  the  redemption  of  the  mortgaged  premises.  Farrall  v. 
Lovel,  3  Atk.  723;  Gordon  v.  Hobart,  2  Story,  243;  Hubbell  v.  Moulson,  53 
N.  Y.  225 ;  Boston  Iron  Co.  v.  King,  2  Cush.  400 ;  Seaver  v.  Durant,  39  Vt. 
103;  Weeks  v.  Thomas,  21  Me.  465;  Givens  v.  McCalmott,  4  Watts,  464;  Bell 
e.  Mayor  N.  Y.,  10  Paige,  49.  And  where  the  rents  and  profits  collected  by 
the  mortgagee  are  more  than  sufHcient  to  satisfy  the  mortgage  debt,  and  the 
mortgagee  is  irresponsible,  a  receiver  may  be  appointed,  pending  the  action 
to  redeem,  to  take  charge  of  subsequently  accruing  rents.  Bolles  v.  DuflP,  35 
How.  Pr.  481 ;  Quinn  v.  Brithaige,  3  Edw.  Ch.  314.     Until  applied  by  judg- 

235 


§    325  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

he  does  not,  by  taking  possession  of  the  land,  assume  the 
responsibilities  of  a  guarantor  of  the  rents,  in  the  collection 
of  the  rent  he  is  under  an  obligation  to  use  that  care,  which 
might  be  expected  from  a  reasonably  prudent  man.  And 
if,  by  reason  of  his  negligence  in  respect  thereto,  any  por- 
tion of  the  rents  and  profits  was  lost,  he  would  be  held  re- 
sponsible for  them  to  the  same  extent  as  if  he  had  actually 
received  them.  Where  he  enters  into  possession  before  the 
breach  of  the  condition,  a  much  greater  degree  of  care  is 
required  of  him  than  after  the  breach.1  And  as  a  corollary 
to  this  rule,  if  the  mortgagee  fails  to  obtain  as  high  a  rent 
as  he  might  have  secured  —  as  where  he  refuses  to  let  to 


ment  of  the  court  to  the  payment  of  the  debt,  there  is  no  legal  satisfaction  of 
the  mortgage  by  the  receipt  of  rents  and  profits  to  the  full  amount  of  the 
mortgage-debt.     Hubbell  v.  Moulson,  53  N.  Y.  225;  13  Am.  Rep.  519. 

1  Hood  v.  Easton,  2  Giff.  692 ;  Robertson  v.  Campbell,  2  Call,  421 ;  Hughes 
v.  Williams,  12  Yes.  493;  Sparhawk  v.  Wills,  5  Gray,  429;  Strong  v.  Blanch- 
ard,  4  Allen,  538;  Richardson  v.  Wallis,  5  Allen,  78;  Saunders  v.  Frost,  5 
Pick.  259;  Barnard  v.  Jennison,  27  Mich.  230;  Shaeffer  v.  Chambers,  2  Halst. 
548;  Milliken  v.  Bailey,  61  Me.  316;  Van  Buren  v.  01mstead,5  Paige  Ch.  9; 
Wralsh  v.  Rutgers  Ins.  Co.,  13  Abb.  Pr.  33;  Barron  v.  Paulling,  38  Ala.  292; 
Hogan  v.  Stone,  1  Ala.  496 ;  Moore  v.  Titman,  44  111.  367 ;  Strong  v.  Allen,  44 
111.  428;  Bainbridge  v.  Owen,  2  J.  J.  Marsh.  4>13;  Benham  v.  Rowe,  2  Cal.  387; 
Harper  v.  Ely,  70  111.  581 ;  George  v.  Wood,  11  Allen,  42 ;  Hubbard  v.  Shaw, 
12  Allen,  122;  Givens  v.  McCalmont,  4  Watts,  460;  Lupton  v.  Almy,  4 
Wis.  242 ;  Ackerman  v.  Lyman,  20  Wis.  454:  Guthrie  v.  Kahle,  46  Penn.  333; 
Gerrish  v.  Black,  104  Mass.  400;  Miller  v.  Lincoln,  6  Gray,  556;  Brandon  v. 
Brandon,  10  W.  R.  287;  Hagthrop  v.  Hook,  1  Gill  &  J.  270;  Reynolds  u. 
Canal  &  B'k'g  Co.,  30  Ark.  520.  If  he  has  kept  no  account  of  the  rents  and 
profits  received,  the  mortgagee  will  be  charged  with  a  reasonable  rent,  i.e.,  what 
might  be  had  with  proper  diligence.  Dexter  v.  Arnold,  2  Sumn.  108;  Gordon 
v.  Lewis,  lb.  150;  Van  Buren  v.  Olmstead,  5  Paige,  9;  Clark  v.  Smith,  1  N. 
J.  Eq.  121;  Montgomery  v.  Chadwick,  7  Iowa,  114.  And  if  the  mortgagee 
remains  in  possession  himself,  he  will  be  charged  for  rent  to  the  full  value  of 
the  land,  the  amount  being  determined  by  expert  testimony.  Gordon  w. 
Lewis,  supra;  Montgomery  v.  Chadwick,  supra;  Holabirdz;.  Burr,  17  Conn.  556; 
Kellogg  v.  Rockwell,  19  Conn.  446;  Moore  v.  Cable,  1  Johns.  Ch.  385;  Chase 
v.  Palmer,  25  Me.  341 ;  Trulock  v.  Robey,  15  Sim.  265;  Van  Buren  v.  Olm- 
stead, supra;  Moore  v.  Degraw,  5  N.  J.  Eq.  346 ;  Powell  o.  Williams,  14  Ala. 
476;  Johnson  v.  Miller,  1  Wils.  416;  Sanders  v.  Wilson,  34  Vt.  318;  Barrett 
v.  Nielson,  54  Iowa,  41 ;  37  Am.  Rep.  183. 

236 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  326 

the  tenant  offering  the  highest  rent  —  he  will  be  liable  for 
this  loss.     But  a  clear  case  of  negligence  or  wilful  disregard 

©      ©  © 

of  the  mortgagor's  interest  must  be  established,  in  order  to 
hold  him  to  account  on  this  ground.     The  mere  failure  to 

© 

obtain  the  highest  rent  possible  is  not  a  sufficient  ground  of 
liability.1  Where  the  rents  and  profits  have  been  increased 
by  permanent  improvements  made  by  himself,  whether  he 
is  accountable  for  such  increase  to  the  mortgagor  depends 
upon  the  character  of  the  improvements.  If  they  be  in  the 
nature  of  accessions  to  the  land,  or,  in  other  words,  fixtures, 
the  erection  of  costly  buildings,  etc.,  he  need  not  account 
for  the  increased  rents  and  profits,  unless  the  mortgagor 
has  indemnified  him  for  the  cost  of  their  erection,  or  he  has 
been  so  paid  by  the  use  of  them.  But  where  the  improve- 
ment is  the  result  of  his  labor  upon  the  land,  or  where  wild 
lands  have  been  cleared,  he  must  make  returns  of  such  im- 
proved rents.1 

§  326.  Tenure  between  mortgagor  and  mortgagee  — 
Adverse  possession.  — Whether  the  actual  possession  is  held 
by  the  mortgagor  or  mortgagee,  there  is  such  a  tenure  ex- 
isting between  them  that,  for  the  purpose  of  protecting  each 
other's  title  and  seisin,  the  possession  of  one  is  deemed  the 
possession  of  the  other.  If  the  one  in  possession  is  dis- 
seised, it  will  work  the  disseisin  of  the  other;  and  where 
one  is  seised,  a  third  person  cannot  set  up  a  title  by  adverse 
possession  against  the  other.3     The  mortgagee  is   estopped 

i  Hughes  v.  Williams,  12  Ves.  493;  Hubbard  v.  Shaw,  12  Allen,  123;  Rowe 
v.  Wood,  2  J.  &  W.  553;  Anon.,  1  Vern.  45;  Jones  on  Mort.,  sect.  1123. 

2  Moore  v.  Cable,  1  Johns.  Ch.  385;  Bell  v.  Mayor  of  N.  Y.,  10  Paige  Ch. 
49;  Morrison  v.  McLeod,  2  lred.  108;  Montgomery  v.  Chadwick,  7  Iowa,  134 
Clark  v.  Smith,  1  N.  J.  Eq.  121 ;  Givens  v.  McCalmont,  4  Watts,  460.     See  2 
Washb.  on  Real  Prop.  224,  225;  but  see  Merriam   v.  Barton,  14  Vt.  501 
Stoney  v.  Shultz,  1  Hill,  464. 

3  Birch  v.  Wright,  1  T.  R.  383 ;  Cholmondeley  v.  Clinton,  2  Meriv.  360 
Poignard  v.  Smith,  8  Pick.  272;  Sheafe  v.  Gerry  ^  18  N.  H.  247;  Dadmun  v 
Lamson,  9  Allen,  85;  Lincoln  v.  Emerson,  108  Mass.  87;  Doe  v.  Barton,  11  A, 

237 


§    326  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

by  his  deed  from  denying  the  title  of  the  mortgagor,  and  if 
he  procures  releases  from  persons  claiming  a  superior  title 
to  the  mortgaged  premises,  such  deeds  enure  to  the  benefit 
of  the  mortgagor  upon  his  payment  of  the  expenses  incurred 
in  purchasing  the  superior  title.1  So  also,  will  the  mortga- 
gor not  be  permitted  to  set  up  against  the  mortgagee  a  par- 
amount title  which  he  has  acquired  subsequently  to  the  exe- 
cution of  the  mortgage.2  Before  condition  broken,  neither 
the  mortgagor  nor  the  mortgagee  can  disseise  the  other  by 
any  denial  of  title;  but  after  the  breach  of  the  condition, 
the  party  in  possession  may  acquire,  by  acts  of  hostility, 
such  an  adverse  possession  as  will  bar  the  other's  title  under 
the  Statute  of  Limitations.  The  statute  begins  to  run  from 
the  time  of  forfeiture  ;  it  cannot  before.  After  the  lapse 
of  the  statutory  period  of  limitation  the  mortgagor  loses  his. 
equity  of  redemption,  and  the  mortgagee  his  right  to  fore- 
close; and  whoever  is  in  possession  acquires  an  absolute 
title  to  the  land.  The  respective  assignees  are  governed  by 
the  same  rules.3     But  any  act  by  the  party  in  possession, 

&E.  307;  Partridge  v.  Bere,  5  B.  &  Aid.  604;  Nichols  r.  Reynolds,  1  R.  I.  30? 
Hunt  v.  Hunt,  14  Pick.  374;  Newman  v.  Chapman,  2  Rand.  93;  Herberts. 
Hanrick,  16  Ala.  581 ;  Boyd  v.  Beck,  29  Ala.  703;  Root  V.Bancroft,  10  Me. 
44;  Sheridan  v.  Welch,  8  Allen,  166;  Currier  v.  Gale,  9  Allen,  522;  Woods  w. 
Hildebrand,  46  Mo.  284;  2  Am.  Rep.  513. 

1  Brown  v.  Combs,  5  Dutch.  36;  Doe  v.  Tunnel,  1  Houst.  320;  Farmers' 
Bank  v.  Bronson,  14  Mich.  369 ;  Connor  v.  Whitmore,  52  Me.  185 ;  contra* 
Wright  v.  Sperry,  25  Wis.  617 ;  Walthall  v.  Rives,  34  Ala.  91. 

2  Tefft  v.  Munson,  57  N.  Y.  97;  Lincoln  v.  Emerson,  108  Mass.  87;  Fuller 
v.  Hodgdon,  25  Me.  243;  Conner  v.  Whitmore,  52  Me.  185;  Miami  Ex.  Co.  v. 
U.  S.  Bank,  Wright,  249;  Fair  v.  Brown,  40  Iowa,  209;  Porter  v.  Lafferty,  33 
Iowa,  257 ;  Stears  v.  Hollenbeck,  38  Iowa,  550 ;  Smith  v.  Lewis,  20  Wis.  350 ; 
Clark  v.  Baker,  14  Cal.  632 ;  Avery  v.  Judd,  21  Wis.  262.  But  if  the  mort- 
gagee is  under  obligation  to  pay  the  taxes,  the  mortgagor  may  demand  of  him 
.satisfaction  for  the  expenses  of  the  tax-title  purchased  in  by  him.  Eaton  v. 
Tallmadge,  22  Wis.  526.  « 

3  Hunt  v.  Hunt,  14  Pick.  374;  Sheppard  v.  Pratt,  15  Pick.  32;  Noyes  v. 
•-turdivant,  18  Me.  10-1;  Roberts  r.  Welch,  8  Ired.  287;  Evans  v.  Huffman,  5 
K.  J.  L.  354;  Wilkinson  v.  Flowers,  37  Miss.  579;  Waldo  v.  Rice,  14  Wis. 
286;  Chick  v.  Rollins,  44  Me.  104;  Tripe  v.  Marey,  39  N.  H.  439;  Inches  ». 

238 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  326 

which  involves  the  recognition  of  the  other's  title,  or  is  an 
acknowledgment  that  the  mortgage-debt  still  exists,  will  re- 
but the  presumption  of  adverse  possession.  Where  the 
mortgagor  is  in  possession,  payment  of  the  interest  or  apart 
of  the  principal  of  the  mortgage-debt,  and  in  th,e  case  of  the 
mortgagee's  possession,  the  acceptance  of  such  payment,  or 
rendering  an  account  for  the  rents  and  profits,  would  be  cir- 
cumstances and  facts,  which  would  negative  the  hostility  of 
the  possession,  and  prevent  the  statute  from  running  against 
the  one  out  of  possession.1 

Leonard,  12  Mass.  379  Crawford  v.  Taylor,  42  Iowa,  260;  Roberts  v.  Little- 
field,  48  Me.  61 ;  Richmond  v.  Aiken,  26  Vt.  324;  Haskell  v.  Bailey,  22  Conn. 
569;  Chick  v.  Rollins,  44  Me.  104;  Rockwell  v.  Servant,  63  111.  424;  Elk- 
ins  v.  Edwards,  8  Ga.  326 ;  Giles  v.  Baremore,  5  Johns.  Ch.  545 ;  Bacon 
v.  Mclntire,  8  Mete.  87;  Knowlton  v.  Walker,  13  Wis.  264;  Bollin- 
ger v.  Chouteau,  20  Mo.  89;  Harris  v.  Mills,  28  111.  46;  Hughes  v.  Ed- 
wards, 9  Wheat.  489;  Nevitt  v.  Bacon,  32  Miss.  212;  Humphrey  v.  Hurd, 
29  Mich.  44;  Green  v.  Turner,  38  Iowa,  112;  Belmont  v.  O'Brien,  12 
N.  Y.  394;  Moore  v.  Cable,  1  Johns.  Ch.  385.  Where  the  mortgagee  enters 
into  possession  before  condition  broken,  notice  must  be  given  to  the  mortgagor 
that  he  holds  possession  for  the  purpose  of  foreclosure,  before  the  statute  will 
run  against  the  mortgagor's  right  to  redeem.  Newall  v.  Wright,  3  Mass.  138; 
Goodwin  v.  Richardson  11  Mass.  469;  Scott  v.  McFarland,  13  Mass.  308.  See 
Yarborough  v.  Newell,  10  Yerg.  376;  Green  v.  Turner,  38  Iowa,  112;  Ham- 
monds v.  Hopkins,  3  Yerg.  525.  And  where,  by  agreement  of  the  parties,  the 
mortgagee  is  to  hold  possession,  until  the  mortgage-debt  was  paid  out  of  the 
rents  and  profits,  the  statute  does  not  begin  to  run,  until  his  claim  has  been 
satisfied  and  he  has  given  the  mortgagor  notice  of  his  adverse  holding.  Anding 
v.  Davis,  38  Miss.  574;  Kohlheim  v.  Harrison,  34  Miss.  457;  Quint  v.  Little,  4 
Me.  495;  Frink  v.  Le  Roy,  49  Cal.  314.  And  no  length  of  possession  will  bar 
the  right  to  redeem,  if  by  agreement  the  mortgagor  has  an  unlimited  time, 
within  which  to  pay  off  the  mortgage.  Wyman  v.  Babcock,  2  Curtis,  386 ; 
Teulon  v.  Curtis,  1  Younge,  616.  The  possession  of  either  party  must  be  ex- 
clusive as  well  as  adverse,  in  order  that  the  statute  may  run.  Burke  o.  Lynch, 
2  Ba.  &  Be.  426;  Archbold  v.  Scully,  9  H.  L.  Cas.  360;  Drummond  v.  Sant, 
L.  R.  6  Q.  B.  763 ;  Rakestraw  v.  Brewer,  Seld.  Cas.  in  Ch.  56.  But  see  Lake 
v.  Thomas,  3  Ves.  jr.  17. 

1  To  bar  foreclosure,  see  Heyer  v.  Pruyn,  7  Paige,  465;  Hughes  v.  Ed- 
wards, 9  Wheat.  490;  Howard  v.  Hildreth,  18  N.  H.  106;  Cheaver  v.  Perley, 
11  Allen,  584 ;  Noyes  v.  Sturdivant,  18  Me.  104 ;  Tripe  v.  Marcy,  39  N.  II.  439  ; 
Zeller  v.  Eckert,  4  How.  295;  Wright  v.  Eaves,  10  Rich.  Eq.  582;  Drayton  o. 
Marshall,  Rice's  Eq.  383;  Howland  v.  Shurlteff,  2  Mete.  26;  Ayres  v.  Waite. 

239 


§  327         MORTGAGORS  AND  MORTGAGEES.       [PART  I. 

§  327.  Insurance  of  the  mortgaged  premises.  —  Both 
the  mortgagor  and  the  mortgagee  have  insurable  interests 
in  the  premises,  and  they  may  insure  their  respective  inter- 
ests at  the  same  time.  The  mortgagee  can  only  insure  to 
the  amount  of  his  debt.  Where  he  takes  out  a  policy  in 
his  own  name,  pays  the  premium,  and  cannot,  by  the  terms 
of  the  mortgage,  call  upon  the  mortgagor  to  refund  such 
payments,  he  takes  the  insurance  money,  in  case  of  loss  by 
fire,  free  from  any  right  of  the  mortgagor  to  have  it  ap- 
plied to  the  liquidation  of  the  mortgage-debt.  He  can  re- 
cover the  insurance,  and  then  proceed  to  collect  the  debt.1 
But  if  he  insures  the  premises  at  the  request  of  the  mort- 
gagor, or  does  so  in  consequence  of  the  neglect  of  the 
mortgagor,  and  at  his  expense,  as  he  may  do  if  the  mort- 

10  Cush.  72;  Carberry  v.  Preston,  13  Ired.  Eq.  455;  Hough  v.  Bailey,  32  Conn. 
288;  Ward  v.  Carter,  L.  R.  1  Eq.  29;  Frear  v.  Drinker,  8  Pa.  St.  520; 
Hughes  v.  Blackwell,  6  Jones  Eq.  73 ;  Jackson  v.  Slater,  5  Wend.  295 ;  Brockle- 
liurst  v.  Jessop,  7  Sim.  438.  And  see  Lord  v.  Morris,  18  Cal.  482 ;  Cunning- 
ham v.  Hawkins,  24  Cal.  409;  Harris  v.  Mills,  28  111.  44;  Perkins  v.  Sterne, 
23  Texas,  563.  To  bar  the  equity  of  redemption,  see  Demarest  v.  Wynkoop,  3 
Johns.  Ch.  129;  Limerick  v.  Voorhis,  9  Johns.  129;  Pendleton  v,  Rooth,  1 
Giff.  35;  Stansfield  v.  Hobson,  16  Beav.  236;  Edsell  v.  Buchanan,  2  Ves.  jr. 
83;  Barron  v.  Martin,  19  Ves.  327;  Hansard  v.  Hardy,  18  Ves.  455;  Richard- 
son v.  Young,  L.  It.  10  Eq.  297;  Calkins  v.  Calkins,  20  K  Y.  147;  Marks  v. 
Pell,  1  Johns.  Ch.  594;  Dexter  v.  Arnold,  3  Sumn.  152;  Morgan  v.  Morgan,  10 
Ga.  297;  MclSTair  v.  Lee,  34  Mo.  285;  Quint  v.  Little,  4  Greenl.  495;  Shep- 
perd  v.  Murdock,  3  Murph.  218;  Roberts  v.  Littlefield,  48  Me.  61 ;  Knowlton 
v.  Walker,  13  Wis.  264. 

1  Ring  v.  State  Ins.  Co.,  7  Cush.  1 ;  Sussex  Mut.  Ins.  Co.  v.  Woodruff,  2 
Dutch.  541;  Excelsior  Ins.  Co.  v.  Ins.  Co.,  55  1ST.  Y.  343;  14  Am.  Rep. 
271;  Kernschan  v.  Bowery  Ins.  Co.,  17  N.  Y.  428;  Norwich  Ins.  Co.  v. 
Boomer,  52  111.  442;  4  Am.  Rep.  618;  Carpenter  v.  Ins.  Co.,  16  Pet.  495; 
Russell  v.  Southard,  12  How  139;  JEtna  Ins.  Co.  v.  Tyler,  16  Wend. 
385;  Springfield  Fire  Ins.  Co.  v.  Allen,  43  N.  Y.  389;  3  Am.  Rep.  711; 
White  v.  Brown,  2  Cush.  41  2  ;  Harding  v.  Townsend,  43  Vt.  536;  Dobson  v'. 
Land,  8  Hare,  216 ;  Fowler  v.  Palmer,  5  Gray,  549 ;  Clark  v.  Wilson,  103 
Mass.  219;  Williams  v.  Ins.  Co.,  107  Mass.  377;  9  Am.  Rep.  41;  Bellamys. 
Brickenden,  2  John.  &  H.  137;  Ely  v.  Ely,  80  111.  532;  Cushing  v. 
Thompson,  34  Me.  496 ;  Bean  v.  A.  &  St.  L.  R.  R.,  58  Me.  82 ;  King  v.  Mut 
Ins.  Co.,  7  Cush.  1. 

240 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  327 

gage  contains  a  covenant  providing  for  the  insurance  of  the 
premises  by  the  mortgagor,  the  mortgagor  will  be  subro- 
gated to  the  benefit  of  the  insurance,  and  the  insurance 
money  must  be  applied  to  the  debt.1  But,  although  the 
mortgagee  is  entitled,  as  against  the  mortgagor,  to  the  full 
benefit  of  the  insurance,  where  there  is  no  covenant  of  in- 
surance, it  is  not  so  certain  that  he  will,  as  against  the  in- 
surance company,  be  permitted  to  recover  to  his  own  use 
both  the  debt  and  the  insurance  money.  Some  of  the  courts 
hold  that  the  insurance  company  will  be  subrogated  to  the 
rights  of  the  mortgagee  under  the  mortgage  in  the  propor- 
tion that  the  insurance  paid  bears  to  the  mortgage-debt;2 
while  the  courts  of  Massachusetts  sustain  the  doctrine  that 
he  may  recover  both  the  insurance  and  the  debt,  discharged 
of  any  right  of  subrogation  in  the   insurance  company,  on 

1  Concord,  etc.,  Ins.  Co.  v.  "Woodbury,  45  Me.  447 ;  Graves  v.  Hampden 
Ins.  Co.,  10  Allen,  285 ;  Callahan  v.  Linthicum,  43  Md.  97 ;  20  Am.  Rep.  106 ; 
Gordon  v.  Ware  Sav.  Co.,  115  Mass.  588;  King  v.  Mut.  Ins.  Co.,  7  Cush.  1 ; 
Clark  v.  Wilson,  103  Mass.  221 ;  Larrabell  v.  Lumbert,  32  Me.  97 ;  Suffolk 
Ins.  Co.  v.  Boyden,  9  Allen,  123 ;  Waring  v.  Loder,  53  N.  Y.  581 ;  Mix  v. 
Hotchkiss,  14  Conn.  32 ;  Norwich  Ins.  Co.  v.  Boomer,  52  111.  442  ;  4  Am.  Rep.  618 ; 
Fowler  v.  Palmer,  5  Gray,  549 ;  Martin  v.  Franklin  Fire  Ins.  Co.,  38  N.  J.  L.  140 ; 
20  Am.  Rep.  372 ;  Nichols  v.  Baxter,  5  R.  I.  491.  And  when  the  mortgage  con- 
tains an  insurance  clause,  and  an  insurance  policy  is  taken  out  by  the  mort- 
:  agee  upon  the  default  of  the  mortgagor  to  do  so,  the  policy  is  presumed  to  be 
taken  out  for  the  benefit  of  both  parties,  and  the  mortgagee  cannot  refuse  to 
apply  it  to  the  debt.  Foster  v.  VanReed,  5  Hun,  321 ;  Buffalo  Steam  Engine 
Works  v.  Ins.  Co.,  17  N.  Y.  406;  Clinton  v.  Hope  Ins.  Co.,  45  N.  Y.  454 ; 
Waring  v.  Loder,  53  N.  Y.  581 ;  Honore  v.  Lamar  Ins.  Co.,  51  111.  409.  And 
in  such  cases,  the  fact  that  the  debt  has  been  paid  will  not  prevent  a  recovery 
of  the  insurance  money.  The  mortgagor's  interest  in  the  policy  keeps  it 
alive.  Norwich  Ins.  Co.  v.  Boomer,  supra;  Concord  Ins.  Co.  v.  Woodbury, 
■supra;  Waring  v.  Jjoder,supra. 

2  Concord  Ins.  Co.  v.  Woodbury,  45  Me.  447 ;  ^Etna  Ins.  Co.  v.  Tyler,  16 
Wend.  397;  Sussex  Ins.  Co.  v.  Woodruff,  2  Dutch.  541;  Kernochan  v.  N.  Y. 
Bowery  Ins.  Co.,  17  N.  Y.  428;  Ulster  Co.  Sav.  Inst.  v.  Leake,  73  N.  Y.  161 ; 
29  Am.  Rep.  115;  Excelsior  Ins.  Co.  v.  Ins.  Co.,  55  N.  Y.  343;  14  Am.  Rep. 
271 ;  Smith  v.  Columbia  Ins.  Co.,  17  Pa.  St.  253 ;  Honore  v.  Lamar  Ins.  Co., 
51  111.  409;  Norwich  Ins.  Co.  v.  Boomer,  52  111.  442;  4  Am.  Rep.  618;  Cal- 
lahan v.  Linthicum,  43  Md.  97 ;  20  Am.  Rep.  106. 

16  241 


§    327  MORTGAGORS    AND    MORTGAGEES.  [PART   I. 

the  ground  that  the  premiums  paid  on  the  policy  are  a  good 
and  adequate  consideration  for  the  risk  assumed,  and  pre- 
vent any  claim  on  the  part  of  the  company  to  the  equitable 
right  of  subrogation.1     The   mortgagor  may  insure  to  the 

1  King  v.  Ins.  Co.,  7  Cush.  1 ;  Suffolk  Ins.  Co.  v.  Boyden,  9  Allen,  123 ; 
Clark  v.  Wilson,  103  Mass.  221;  Foster  v.  Equitable  Ins.  Co.,  2  Gray,  216; 
Dobson  v.  Land,  8  Hare,  216.  In  King  v.  Ins.  Co.,  supra,  Chief  Justice  Shaw 
said:  "He  (the  mortgagee)  surely  may  recover  of  the  mortgagor,  because 
he  is  his  debtor,  and  on  good  consideration  has  contracted  to  pay.  The 
money  received  from  the  underwriters  was  not  a  payment  of  his  debt;  there 
was  no  privity  of  contract  between  the  mortgagor  and  the  underwriters ;  he 
had  not  contracted  with  them  to  pay  it  for  him,  on  any  contingency;  he  had 
paid  them  nothing  for  so  doing.  They  did  not  pay  because  the  mortgagor 
owed  it;  but  because  they  had  bound  themselves,  in  the  event  which  has 
happened,  to  pay  a  certain  sum  to  the  mortgagee."  *  *  *  "What,  then, 
is  there  inequitable,  on  the  part  of  the  mortgagee,  towards  either  party  in  hold- 
ing both  sums?  They  are  both  due  upon  valid  contracts  with  him,  made 
upon  adequate  considerations  paid  by  himself.  There  is  nothing  inequitable  to 
the  debtor,  for  he  pays  no  more  than  he  originally  secured  in  money  loaned  ; 
nor  to  the  underwriter,  for  he  has  only  paid  upon  a  risk  voluntarily  taken,  for 
which  he  was  paid  by  the  mortgagee  a  full  and  satisfactory  equivalent." 
Perhaps  the  true  theory  lies  between  these  opposite  positions  of  the  courts. 
The  Massachusetts  court  is  undoubtedly  correct  in  its  position,  that  there  is 
no  equitable  ground  for  the  application  of  the  doctrine  of  subrogation.  But 
it  is  incorrect  to  go  farther  and  hold  that  the  mortgagee  may  recover  both 
sums  to  his  own  use.  A  mortgagee  insures  only  his  interest  in  the  mortgaged 
premises,  and  that  interest  is  exhausted  when  the  debt  is  paid.  Graves  v. 
Hampden  Ins.  Co.,  10  Allen,  283 ;  Sussex  Ins.  Co.  v.  Woodruff,  2  Dutch.  541. 
From  this  position  it  is  an  easy  step  to  say,  that  when  the  mortgage  property 
after  the  loss  by  fire  is  sufficient  to  satisfy  the  mortgage-debt,  and  it  is  actually 
satisfied,  either  by  foreclosure  or  by  payment  by  the  mortgagor,  the  mort- 
gagee has  sustained  no  loss.  See  iEtna  Ins.  Co.  v.  Tyler,  16  Wend.  385; 
Kernochan  v.  Bowery  Ins.  Co.,  17  N.  Y.  428 ;  Carpenter  v.  Providence,  etc., 
Ins.  Co.,  16  Pet.  495;  Smith  v.  Columbia  Ins.  Co.,  17  Pa.  St.  253;  contra, 
Excelsior  Ins.  Co.  v.  Ins.  Co.,  55  N.  Y.  343.  The  mortgagee  may  proceed 
either  against  the  insurance  company  on  the  policy,  or  against  the  mort- 
gagor on  the  mortgage,  and  neither  of  them  can  object,  or  compel  him  to 
proceed  against  both.  Nor  has  either  a  claim  against  the  other.  But  if  the 
mortgagee  does  recover  from  both,  the  position  of  the  mortgagee,  in  respect  to 
the  insurance  company,  is  the  same  as  if  the  mortgagor  had  paid  the  debt, 
before  application  had  been  made  for  the  insurance  money.  In  the  latter 
case,  he  could  not  recover  of  the  insurance  company,  for  he  had  suffered  no 
loss.  And  it  would  seem  but  natural,  that  the  insurance  company  may  be 
permitted  to  institute  a  suit  against  the  mortgagee  for  money  had  and  re- 

242 


CH.  X.]       MORTGAGORS  AND  MORTGAGEES.        §  327 

full  value  of  the  premises,  irrespective  of  the  mortgagee's 
interest.  A  mortgage  is  not  such  an  alienation  as  will  de- 
feat  the  policy  of  insurance  —  not  even  so  far  as  to  reduce 
the  mortgagor's  insurable  interest  to  the  equity  of  redemp- 
tion.1 And  in  the  absence  of  the  covenant  requiring  the 
mortgagor  to  keep  the  premises  insured,  the  mor  ;agee  has 
not  the  right  to  demand  the  appropriation  of  the  insurance 
money  to  the  payment  of  the  mortgage-debt.2  But  where 
the  mortgage  calls  for  the  insurance  of  the  premises,  and 

ceived,  if  after  the  payment  of  the  insurance  money  the  mortgagor  satisfied 
the  mortgage.  This  position  does  not  conflict  with  the  rules  of  equity  in 
reference  to  subrogation,  while  it  is  at  the  same  time  more  consonant  with 
the  general  principles  underlying  the  law  of  insurance. 

1  Strong  v.  Ins.  Co.,  10  Pick.  40 ;  Tuck  v.  Hartford  Ins.  Co.,  56  N.  H.  326 ; 
Nichols  v.  Baxter,  5  R.  I.  494 ;  Quarrier  v.  Peabody  Ins.  Co.,  10  W.  Va.  507 ; 
27  Am.  Rep.  582 ;  Fame  v.  Wenans,  1  Hopk.  Ch.  283 ;  Stephens  v.  Mut.  Ins. 
Co.,  43  111.  325 ;  Dyers  v.  Ins.  Co.,  35  Ohio  St.  606 ;  35  Am.  Rep.  623 ;  Manhat- 
tan Ins.  Co.  v.  Weill,  28  Gratt.  382;  26  Am.  Rep.  364;  111.  Ins.  Co.  v.  Stanton, 
57  111.  354 ;  Commercial  Ins.  Co.  v.  Spankneble,  52  111.  53 ;  4  Am.  Rep.  582 ; 
Hartford  Ins.  Co.  v.  Walsh,  54  111.  164;  Am.  Rep.  115.  And  the  mortgagor 
continues  to  have  an  insurable  interest  in  the  property,  as  long  as  his  right  of 
redemptiom  is  not  completely  barred.  Gordon  v.  Ins.  Co.,  2  Pick.  249 ;  Buf- 
falo Steam  Engine  Co.  v.  Ins.  Co.,  17  N.  Y.  401 ;  Cheney  v.  Woodruff,  54  N. 
Y.  98;  Strong  v.  Ins.  Co.,  supra;  Waring  v.  Loder,  53  N.  Y.  581.  Although 
the  existence  of  a  mortgage  does  not  reduce  the  insurable  interest  of  the  mort- 
gagor, still  it  is  held  in  some  of  the  States  that,  if  inquiry  is  made  as  to  them, 
it  becomes  a  material  fact,  and  misrepresentations,  concerning  their  existence 
or  the  amountsecured  by  them,  will  vitiate  the  policy.  Davenport  v.  Ins.  Co., 
6  Cush.  340;  Brown  v.  People's  Ins.  Co.,  11  Cush.  280;  Bowditch  Ins.  Co.  v. 
Winslow,  8  Gray,  38 ;  Packard  v.  Agawan  Ins.  Co.,  2  Gray,  334 ;  Smith  v. 
Columbia  Ins.  Co.,  17  Pa.  St.  233;  contra,  Norwich  Ins.  Co.  v.  Boomer,  52 
111.442;  4  Am.  Rep.  618. 

2  Carter  v.  Rockett,  8  Paige  Ch.  437;  Nichols  v.  Baxter,  5  R.  I.  491; 
Hancox  v.  Pishing  Ins.  Co.,  3  Sumn.  132 ;  Stearns  v.  Quincy  Mut.  Ins.  Co., 
124  Mass.  61 ;  26  Am.  Rep.  647;  Wilson  v.  Hill,  3  Mete.  66;  Vandegraaff  v. 
Medlock,  3  Port.  389;  Plimpton  v.  Ins.  Co.,  43  Vt.  497;  Columbia  Ins.  Co.  v. 
Lawrence,  10  Pet.  507;  Foster  v.  Van  Reed,  70  N.  Y.  19;  26  Am.  Rep.  544; 
Carpenter  v.  Providence,  etc.,  Ins.  Co.,  66  Pet.  495 ;  Thomas  v.  Vonkapff,  6 
Gill  &  J.  372;  McDonald  v.  Black,  20  Ohio,  185;  Powles  v.  Innes,  11  M.  & 
W.  10;  Vernon  v.  Smith,  5  B.  &  A.  1 ;  De  Forest  v.  Fulton  Ins.  Co.,  1  Hall, 
103 ;  Fame  v.  Winnons,  1  Hopk.  Ch.  283 ;  Neale  v.  Reed,  3  Dowl.  &  Ry. 
158. 

243 


§    327  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

the  mortgagor  performs  the  covenant,  the  mortgagee  ac- 
quires therein  a  beneficial  interest,  and  is  entitled  to  have 
the  insurance  money  applied  to  the  debt.1  But  where  the  • 
loss  is  made  payable  to  the  mortgagor,  or  is  assigned  to  the 
mortgagee  without  the  consent  of  the  company,  alienation 
by  the  mortgagor  of  his  interest  will  defeat  the  policy,  even 
as  to  the  mortgagee.  For  the  complete  protection  of  the 
mortgagee,  the  policy  should  be  assigned  to  him  with  the 
consent  of  the  company,  and  the  assignment  should  be  made 
to  appear  on  the  company's  books  as  well  as  on  the  face  of 
the  policy.  When  the  policy  is  in  this  shape,  the  mort- 
gagee, in  case  of  loss,  receives  the  insurance  money  intrust 
to  apply  it  to  the  debt,  and  such  application  may  be  en- 
forced, not  only  by  the  mortgagor,  but  by  every  one  claim- 
ing through  him  and"  subject  to  the  mortgage.  The  surplus, 
if  any,  goes  to  the  mortgagor  and  those  in  privity  with  him.2 

1  Concord,  etc.,  Ins.  Co.  v.  Woodbury,  45  Me.  447  ;  Gordon  v.  Ware  Sav- 
ings Ins.  Co.,  115  Mass.  588;  Cromwell  v.  Brooklyn  Ins.  Co.,  44  N.  Y.  42; 
Carter  v.  Rockett,  8  Paige,  437 ;  Norwich  Ins.  Co.  v.  Boomer,  52  111.  442 ;  In 
re  Sands  Ale  Brewing  Co.,  3  Biss.  175;  Miller  v.  Aldrich,  31  Mich.  408  ;  Gid- 
dings  v.  Seevers,  24  Md.  363;  Burns  v.  Collins,  64  Md.  215;  Thomas  v.  Von- 
kapff,  6  Gill  &  J.  372 ;  Nichols  v.  Baxter,  5R.L  491. 

2  Macomber  v.  Cambridge  Ins.  Co.,  8  Cush.  133 ;  Grosvenor  v.  Atlantic 
Ins.  Co.,  17  N.  R.  391 ;  Luckey  v.  Gannon,  37  How.  Pr.  134;  Boyd  v.  Cudder- 
back,  31  111.  119 ;  King  v.  State  Ins.  Co.,  7  Cush.  1 ;  Fowley  v.  Palmer,  5  Gray, 
549;  Graves  v.  Hampden  Ins.  Co.,  10  Allen,  382;  Concord,  etc.,  Ins.  Co.  r. 
Woodbury,  45  Me.  447 ;  Larrabee  v.  Lumbert,  32  Me.  97  ;  Waring  ».  Loder. 
53  N.  Y.  581 ;  Clark  v.  Wilson,  103  Mass.  221 ;  Mix  v.  Hotchkiss,  14  Conn.  32. 
Where  the  insurance  is  obtained  in  the  name  of  the  mortgagor,  but  the  policy 
contained  a  provision,  that  the  loss,  if  any,  is  to  be  paid  to  the  mortgagee; 
generally  it  is  required  that  suit  on  the  policy  must  be  instituted  in  the  mort- 
gagee's name,  or  jointly  with  the  mortgagor.  Ennis  v.  Harmony  Ins.  Co.,  3 
Bosw.  516;  Concord  Mut.  Ins.  Co.  v.  Woodbury,  45  Me.  447;  Grosvenor  v. 
Atlantic  Ins.  Co.,  17  N.  Y.  391 ;  Norwich  Ins.  Co.  v.  Boomer,  52  111.  442 ;  4 
Am.  Rep.  618;  Frink  v.  Hampden  Ins.  Co.,  45  Barb.  384;  Martin  v.  Franklin 
Ins.  Co.,  38  N.  J.  L.  140.  But  with  the  consent  of  the  mortgagee,  the  mort- 
gagor may  bring  the  suit  alone  in  his  own  name.  Patterson  v.  Triumph  Ins. 
Co.,  64  Me.  500;  Farrow  v.  Ins.  Co.,  18  Pick.  53;  -Jackson  v.  Farmers'  Ins. 
Co.,  5  Gray,  52;  Turner  v.  Quincy  Ins.  Co.,  109  Mass.  568;  Illinois  Ins.  Co. 
v.  Stanton,  57  111.  354. 

244 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  329 

§  328.  Assignment  of  the  mortgage. — Whether  the 
mortgagee's  interest  be  considered  a  legal  estate  or  only  a 
lien,  it  is  clear,  since  the  mortgage  is  in  form  a  conveyance, 
and  is  required  to  be  recorded  like  all  other  conveyances, 
that  the  proper  mode  of  assigning  it  is  by  deed  or  instru- 
ment of  the  same  character  as  the  mortgage  itself,  either 
separate  from  or  written  on  the  back  of  the  mortgage,  to- 
gether with  the  assignment  and  delivery  of  the  instrument 
of  indebtedness ,  if  there  be  any.  Such  an  assignment  would 
vest  the  entire  legal  interest  of  the  mortgagee  in  the  as- 
signee.1 Whether  a  deed  is  absolutely  required  to  assign 
the  legal  interest  of  the  mortgagee  depends  upon  the  con- 
struction placed  upon  mortgages  in  the  State  in  which  the 
question  arises.  And,  in  determining  this  question,  it  must 
be  observed  that,  although  the  assignment  of  the  mortgage 
debt,  irrespective  of  its  effect  upon  the  mortgage,  will  be 
governed  by  the  lex  loci  contractus,  the  assignment  of  the 
mortgage  itself  must  conform  to  the  law  of  the  place  where 
the  mortgaged  land  is  situated.2 

§  329.  Common  law  assignment.  —  At  common  law,  and 
under  the  prevailing  common-law  theory,  nothing  less  than 
a  deed  will  be  sufficient  to  pass  the  legal  interest  of  the 
mortgagee.3     But  the  deed  need  not  in  express  words  be  the 

1  Jones  on  Mort,  sect.  786;  2  Washb.  on  Real  Prop.  113-118. 

2  Story  on  Confl.,  sects.  363,  364 ;  Goddard  v.  Sawyer,  9  Allen,  78.  But 
this  is  not  the  case  in  regard  to  the  equitable  assignment  of  the  mortgage, 
effected  by  the  transfer  of  the  debt.  The  equitable  rights  of  the  parties  are 
governed  by  the  lex  loci  contractus.  See  Hoyt  v.  Thompson,  19  N.  Y. 
207;  Dundas  v.  Bowler,  3  McLean,  397;  Murrell  v.  Jones,  40  Miss.  565. 

'■'■  Warden  v.  Adams,  15  Mass.  233 ;  Gould  v.  Newman,  6  Mass.  239 ;  Par- 
sons v.  Welles,  17  Mass.  419 ;  Adams  v.  Parker,  12  Gray,  53 ;  Ruggles  v.  Bar- 
ton, 13  Gray,  506;  Prescott  v.  Ellingwood,  23  Me.  345;  Douglass  v.  Durin,  51 
Me.  121;  Warren  v.  Homestead,  33  Me.  256 ;  Mitchell  v.  Burnham,  44  Me. 
286 ;  Givan  v.  Tout,  7  Blackf.  210 ;  Burton  v.  Baxter,  7-  Blackf.  297 ;  Hender- 
son v.  Pilgrim,  22  Texas,  464;  Cottrell  v.  Adams,  2  Biss.  351 ;  McChandles  v. 
Engle,  51  Pa.  St.  309;  Twitchell  v.  McMurtrie.  77  Pa.  St.  383;  Kinna  v. 
Smith,  3  N.  J.  Eq.  14;  Graham  v.  Newman,  21  Ala.  497;  but  in  New  Jersey 

245 


§    329  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

assignment  of  the  mortgage.  A  quit-claim  deed  or  an  or- 
dinary deed  purporting  to  convey  an  absolute  estate  in  fee 
will  carry  whatever  legal  interest  the  mortgagee  has  in  the 
mortgaged  premises,  although  it  seems  that  it  would  have 
no  effect  upon  the  mortgage  debt,  unless  it,  too,  was  as- 
signed. But  a  deed  with  a  general  warranty  will  in  equity 
work  an  assignment  of  the  debt,  wrherever  the  grantee 
has  paid  a  valuable  and  substantial  consideration  for  the 
same.1  Under  this  theory  an  assignment  of  the  mortgage 
debt  would  not  operate  as  an  assignment  of  the  mortgage.2 
If  the  assignment  of  the  mortgage  does  not  carry  with  it  the 
mortgage-debt,  or  the  mortgage  is  assigned  to  one  person 
and  the  debt  to  another,  the  assignee  of  the  mortgage  re- 
ceives  only  the  legal  estate,  which  he  holds  in  trust  for  the 
one  who  owns  the  debt.3     Such  is  also  the   rule  at  common 

a  seal  is  not  now  necessary.  Mulford  v.  Peterson,  35  N.  J.  L.  127 ;  Ham- 
mond v.  Lewis,  1  How.  14. 

1  Hunt  v.  Hunt,  14  Pick,  374;  Welsh  v.  Priest,  8  Allen,  165;  Savage  v. 
Hall,  12  Gray,  364;  Hill  v.  More,  40  Me.  52-3;  Dorkey  v.  Noble,  8  Me.  278; 
Connor  v.  Whitmore,  52  Me.  186 ;  Collamer  v.  Langdon,  29  V't.  32  ;  Givan  v. 
Doe,  7  Blackf.  210;  Severance  v.  Griffith,  2  Lans.  38;  Weeks  v.  Eaton,  15  N. 
H.  145;  Thompson  v.  Kenyon,  100  Mass.  108;  Crocker  v.  Jewell,  31  Me.  306. 
But  where  there  is  a  separate  instrument  of  indebtedness,  in  order  to  pass  the 
debt,  it  must  also  be  delivered,  unless  the  deed  is  a  warranty  deed,  when 
there  will  be  an  equitable  assignment  of  the  debt.  Lawrence  v.  Stratton,  6 
Cush.  163;  Ruggles  v.  Barton,  13  Gray,  500;  Olmstead  v.  Elder,  2  Sandf.  Ch. 
325 ;  Dixfield  v.  Newton,  41  Me.  221 ;  Hobson  v.  Boles,  20  X.  H.  41 ;  Furbush 
v.  Goodwin,  25  N.  H.  425;  Dearborn  v.  Taylor,  18  N.  H.  154;  Givan  v.  Doe, 
7  Blackf.  210;  Welsh  v.  Phillips,  54  Ala.  309;  25  Am.  Rep.  679 ;  but  see 
Weeks  v.  Eaton,  15  N.  H.  145;  Hinds  v.  Ballou,  44  X.  H.  621.  But  see  post, 
p.  248,  note  1. 

2  Adams  v.  Gray,  12  Gray,  53 ;  Stanley  v.  Kempton,  59  Me.  472 ;  Young 
v.  Miller,  6  Gray,  152;  Bourland  v.  Kipp,  55  111.  376. 

s  Story  Eq.,  sect.  1023  n;  Parsons  v.  Welles,  17  Mass.  419;  Merritt  »,  Bar- 
tholick,  36  N.  Y.  44;  Thayer  v.  Campbell,  9  Mo.  280;  Moore  v.  Ware,  88 
Me.  496 ;  Johnson  v.  Caudage,  31  Me.  28 ;  Warren  v.  Homestead,  33  Me.  256  ; 
Heyes  v.  Wood,  21  Vt.  331 ;  Jackson  v.  Willard,  4  Johns.  41 ;  Aymar  v.  Bill, 
5  Johns.  Ch.  570 ;  Center  v.  P.  &  M.  Bank,  22  Ala.  743 ;  Swan  v.  Japple.  35 
Iowa,  248 ;  Carter  v.  Bennett,  4  Fla.  283 ;  Bell  v.  Morse,  6  N.  H.  20"> ; 
Hutchins  v.  Carleton,    19  ST.  H.  487 ;    Bailey  v.   Gould,  Walk.  (Mich.)  478 ; 

246 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  329 

law,  "where  the  debt  upon  the  death  of  the  mortgagee  vested 
in  the  personal  representatives,  while  the  mortgage  de- 
scended to  his  heirs  in  trust  for  the  personal  estate.1  The 
assignee  cannot  acquire  by  such  an  assignment  any  beneficial 
interest  in  the  mortgage,  and  the  trust  is  binding  upon  him 
and  all  his  privies  who  have  actual  or  constructive  notice. 
And  where  the  mortgagor  has  notice  of  the  assignments  of 
the  mortgage  and  debt  to  different  persons,  he  cannot  dis- 
charge the  mortgage  by  payment  or  tender  of  payment  to 
the  assignee  of  the  mortgage.2  In  a  number  of  the  States 
it  is  now  held  that  the  assignment  of  the  mortgage  without 

Peters  v.  Jamestown  Bridge  Co.,  5  Cal.  334;  Johnson  v.  Cornett,  29  Ind.  59; 
Langster  v.  Love,  11  Iowa,  580;  Patton  v.  Pearson,  57  Me.  434.  To  pass  the 
beneficial  interest  in  the  mortgage,  the  mortgage-note  or  bond,  if  there  be 
such,  must  be  assigned  with  the  mortgage,  at  least  as  against  the  mortgagor 
and  subsequent  assignees  of  the  debt.  Bowers  v.  Johnson,  49  N.  T.  432; 
Kellogg  v.  Smith,  26  K  Y.  18;  Merritt  v.  Bartholick,  36  N.  Y.  44;  King  v. 
Harrington,  2  Aik.  33 ;  Edgell  v.  Stanfords,  3  Vt.  202 ;  Hitchcock  v.  Merrick, 
18  Wis.  357 ;  "Warden  v.  Adams,  15  Mass.  233.  And  the  note  or  bond  need 
not  be  indorsed,  if  delivered.  Pratt  v.  Skolfield,  45  Me.  3SG ;  King  v.  Har- 
rington, supra;  Pease  v.  Warren,  29  Mich.  9;  contra,  Kelly  v.  Burnham,  9  N. 
H.  20.  But  where  the  debt  has  not  been  assigned  to  another,  it  may,  as  against 
the  mortgagee,  pass  by  assignment  in  equity  to  the  assignee  of  the  mortgage 
without  any  formal  transfer,  if  it  be  the  intention  of  the  parties  that  the  as- 
signee should  acquire  a  beneficial  interest  in  the  mortgage.  Merritt  v.  Bartho- 
lick, 36  N.  Y.  44;  Buckley  v.  Chapman,  9  Conn.  5;  Northampton  Bk.  v. 
Balliet,  8  W.  &  S.  311 ;  Phillips  v.  Bk.  of  Lewiston,  18  Pa.  St.  P'  4 ;  Campbell 
v.  Burch,  1  Lans.  178;  Cooper  v.  Newland,  17  Abb.  Pr.  342.  And  where 
there  is  no  separate  instrument  of  indebtedness,  the  beneficial  interest 
will  always  pass  with  the  assignment  of  the  mortgage  unless  it  is  expressly 
reserved.  Severance  v.  Griffitt,  2  Lans.  38;  Caryl  v.  Russell,  7  lb.  416;  Cole- 
man v.  Van  Renssalaer,  44  How.  Pr.  368. 

1  2  Washb.  on  Real  Prop.  120,  121,  141 ;  Demarest  v.  Wynkoop,  3  Johns.  Ch. 
145;  Jackson  v.  Delancey,  11  Johns.  365;  Wilkins  v.  French,  20  Me.  Ill ; 
Smith  v.  Dyer,  16  Mass.  23;  Dewey  v.  Van  Deusen,  4  Pick.  19;  Kinna  v. 
Smith,  2  Green  Ch.  14 ;  Chase  v.  Loekerman,  11  Gill  &  J.  185 ;  Taft  v.  Ste- 
vens, 3  Gray,  604;  Dexter  v.  Arnold,  1  Sumn.  109;  Green  v.  Hunt,  Cooke, 
344 ;  White  v.  Rittenmyer,  30  Iowa,  272. 

2  Mitchell  v.  Burnham,  44  Me.  302 ;  James  v.  Johnson,  6  Johns.  Ch.  417 ; 
Gregory  v.  Savage,  32  Conn.  250 ;  Henderson  v.  Pilgrim,  22  Texas,  464 ;  Bank 
v.  Anderson,  14  Iowa,  544;  Johnson  v.  Carpenter,  7  Minn.  176.     But  the  no- 

247 


§    330  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

the  debt  is  a  nullity;  it  conveys  no  estate  to  the  assignee, 
and  he  may  be  treated  as  a  trespasser  by  the  mortgagor  or 
the  assignee  of  the  debt.1 

§  330.  Assignment  under  the  lien  theory. — Although 
it  is  still  held  in  those  States  which  have,  to  a  greater  or  less 
degree,  discarded  the  common-law  theory,  that  an  effectual 
legal  assignment  of  the  mortgage  requires  a  deed  proved 
and  acknowledged  like  all  other  deeds  of  conveyance,  it  is 
there  held  that,  the  debt  being  the  principal  thing  and  the 
mortgage  only. a  security  or  lien,  an  assignment  of  the  debt 
will  operate  as  an  equitable  assignment  of  the  mortgage, 
binding  upon  all  persons  having  notice,  and  giving  to  the 
assignee  the  power  in  equity  to  exercise  all  the  rights  of  the 
mortgagee.2     Inasmuch  as  under  the  lien  theory  the  mort- 

tice  must  be  actual.  The  record  of  the  assignment  is  not  constructive  notice 
to  the  mortgagor.  Williams  v.  Sorrell,  4  Ves.  jr.  389 ;  Mitchell  v.  Burnham» 
supra;  Wolcottu.  Sullivan,  1  Edw.  Ch.399;  Heed  v. Marble,  10  Paige Ch.  409; 
3  "Washb.  on  Real  Prop.  316;  see  post,  sect.  340. 

1  Wilson  v.  Troup,  2  Cow.  195;  Jackson  v.  Willard,  4  Johns.  43;  Merritt  ». 
Bartholick,  36  1ST.  Y.  44 ;  Purdy  v.  Huntington.  42  N.  Y.  346  ;  Huntington  v- 
Smith,  4  Conn.  235;  Ellison  v.  Daniels,  11  N.  H.  274;  Furbish  v.  Goodwin,  25 
N.  H.  425 ;  Thayer  v.  Campbell,  9  Mo.  280 ;  Burdett  v.  Clay,  8  B.  Mon.  287 ; 
Willis  v.  Valette,  4  Mete.  (Ky.)  195;  Hays  v.  Lewis,  17  Wis.  212;  Hill  v.  Ed- 
wards, 11  Minn.  29;  Greve  v.  Coffin,  14  Minn.  343;  Rankin  v.  Major,  9  Iowa. 
297 ;  Blair  v.  Bass,  4  Blackf.  539 ;  Dick».  Ma  wry,  9  Smed.  &  M.  448 ;  Bayley  v. 
Gould,  Walk.  (Mis>.)  478;  McGan  v.  Marshall,  7  Humph.  121;  Doer. 
McLoskey,  1  Ala.  708 ;  Martin  v.  Reynolds,  6  Mich.  73;  Ladue  v.  R.  R.  Co.,  13 
Mich.  396;  Perkins  v.  Stearne,  23  Texas,  563;  Peters  v.  Jamestown  Bridge  Co., 
5  Cal.  335;  Nagle  v.  Marcy,  9  Cal.  428.  But  if  the  mortgagee  is  in  possession* 
the  rule  is  different,  and  sufficient  title  passes  to  the  assignee  of  the  mortgage 
to  give  him  the  right  of  possession,  which  he  can  maintain  against  all  who 
do  not  show  a  better  title.  Smith  v.  Smith.  15  N.  H.  55;  Lamprey  v.Nudd- 
29  N.  H.  299;  Hinds  v.  Ballou,  44  N".  H.  487;  Wallace  v.  Goodall,  18  K  H- 
439;  Pickett  v.  Jones,  63  Mo.  195. 

2  Wolcott  v.  Winchester,  15  Gray,  461 ;  Vose  v.  Handy,  2  Greenl.  322 ; 
Southerin  v.  Mendum,  5  N.  H.  420;  Northy  v.  Northy,  45  N.  H.  144;  Blake  v. 
Williams,  36  N.  H.  39 ;  Langdon  v.  Keith,  9  Vt.  299 ;  Keyes  v.  Wood,  21  Vt. 
331 ;  Lawrence  v.  Knap,  1  Root,  248 ;  Dudley  v.  Caldwell,  19  Conn.  218 ; 
Neilsonv.  Blight,  1  Johns.  Cas.  205;  Evertson  v.  Booth,  19  Johns.  491;  Par- 
melee  v.  Daun,  23  Barb.  461 ;  Kortright  v.  Cady,  21  jST.  Y.  261 ;  Wilson  v- 

248 


CH.  X.]       MORTGAGORS  AND  MORTGAGEES.        §  330 

gagee  has  very  few,  if  any,  rights  which  are  enforceable  only 
in  law,  the  equitable  assignment  of  the  mortgage  affords 
sufficient  protection  for  the  assignee.     This  is  particularly 

Troup,  2  Cow.  242 ;  Craft  v.  Webster,  4  Eawle,  242 ;  Danley  v.  Hays,  17  Sere:. 
&  R.  400 ;  Partridge  v.  Partridge,  38  Pa.  St.  78 ;  Hyman  v.  Devereux,  63  N. 
C.  624;  Muller  v.  Wadlington,  5  S.  C.  242;  Wright  v.  Eaves,  10  Rich.  Eq 
585;  Scott  v.  Turner,  15  La.  An.  346;  Wilson  ».  Heyward,  2  Fla.  27:  s.  c,  6 
Fla.  191;  Emanuel  v.  Hunt,  2  Ala.  190;  Graham  v.  Newman,  21  Ala.  497; 
Dick  v.  Mawry,  17  Miss.  448 ;  Holmes  v.  McGinty,  44  Miss.  94 ;  Martin  v.  Mc- 
Reynolds,  6  Mich.  70;  Ladue  v.  R.  R.  Co.,  13  Mich.  396;  U.  S.  Rank  v. 
Covert,  13  Ohio,  240;  Paine  v.  French,  4  Ohio,  318;  Miles  v.  Gray,  4  B.  Mon. 
417;  Burdett  v.  Clay,  8  lb.  287;  Lucas  v.  Harris,  20  111.  165;  Mapps  v.  Sharpe, 
32  111.  165;  Laberge  v.  Chauvin,  2  Mo.  179;  Anderson  v.  Baumgartner,  27  Mo. 
80;  Potter  w.  Stevens,  40  Mo.  229;  Burton  v.  Baxter,  7  Blackf.  297;  French  v. 
Turner,  15  Ind.  59;  Crow  v.  Vance,  4  Iowa,  434;  Bank  of  Indiana  v.  Ander- 
son, 14  Iowa,  544;  Fisher  v.  Otis,  3  Chand.  83;  Andrews  v.  Hart,  17  Wis.  297; 
Ord  v.  McKee,  5  Cal.  575;  Willis  v.  Farley,  24  Cal.  497  ;  Kurtz  v.  Sponable,  6- 
Kan.  395.  But  as  a  general  proposition,  such  an  assignee  acquires  no  legal 
interest,  and  can  therefore  exercise  none  of  the  rights  of  a  legal  owner,  such 
as  the  maintenance  of  an  action  of  ejectment  or  a  writ  of  entry.  Cottrell  v. 
Adams,  2  Biss.  351;  Young  v.  Miller,  6  Gray,  152;  Dwinel  v.  Perley,  32  Me. 
197;  Edgerton  v.  Young,  43  111.  464;  Graham  v.  Newman,  21  Ala.  497;  Part- 
ridge v.  Partridge,  38  Pa.  St.  78 ;  Warden  v.  Adams,  15  Mass.  232.  But  in  the  code 
States,  where  all  actions  are  instituted  in  the  name  of  the  party  beneficially 
interested,  the  equitable  assignee  may  enforce  the  mortgage  in  his  own  name. 
Gower  v.  Howe,  20  Ind.  396;  Sangston  v.  Love,  11  Iowa,  580;  Rankin  v.  Major, 
9  Iowa,  297  ;  Clearwater  v.  Rose,  1  Blackf.  138 ;  Paine  v.  French,  4  Ohio,  320 ; 
Garland  v.  Richeson,  4  Rand.  266  ;  Kurtz  v.  Sponable,  6  Kan.  395 ;  see  also,  to 
the  same  effect,  Kinna  v.  Smith,  2  Green  Ch.14;  Mulford  W.Peterson,  35  N.  J. 
Eq.  127 ;  Williams  v.  Morancy,  3  La.  An.  227 ;  Southerin  v.  Mendum,  5  N.  H. 
420;  Rigney  v.  Lovejoy,  13  N.  H.  247  ;  Austin  v.  Burbank,  2  Day,  396;  Clark- 
sons  ^.Doddridge,  14  Gratt.  44;  Runyan  v.  Mersereau,  11  Johns.  534.  And 
in  those  States  where  the  legal  title  of  the  mortgage  does  not  pass  with  the  as- 
signment of  the  debt,  equity  may  compel  the  holder  of  the  legal  title  to  trans- 
fer it  to  the  assignee  of  the  debt,  or  to  maintain  the  suits  necessary  for  th© 
protection  of  the  assignee.  Wolcott  v.  Winchester,  15  Gray,  461 ;  Crane  v. 
March,  4  Pick.  131 ;  Mount  v.  Suydam,  4  Sandf.  Ch.  399 ;  Lyon's  App.,  61  Pa. 
St.  15;  Baker  v.  Terrell,  8  Minn.  195.  And  where  the  mortgage  is  given  to 
secure  two  or  more  debts,  the  assignment  of  one  of  them  will  operate  as  an 
assignment  of  a  pro  rata  share  in  the  mortgage,  unless  it  is  the  expressed  in- 
tention of  the  parties  that  the  entire  mortgage-security  should  be  retained 
for  the  benefit  of  the  remaining  debts.  Donley  v.  Hays,  17  Serg.  &  R.  400; 
Belding  v.  Manly,  21  Vt.  550;  Miller  v.  Rutland,  etc.,  R.  R.,  40  Vt.  39;  Keyea 
v.  Woods,  21  Vt.  331;    Cooper  v.  Ulman,  Walk.  (Mich.)  251;  Warden  v. 

249 


§  331        MORTGAGORS  AND  MORTGAGEES.      [PART  I. 

the  case  in  those  States  where  the  mortgagee  is  prohibited 
from  assigning  the  mortgage  without  the  debt. 

§  331.  Assignment  of  the  mortgagor's  interest.  —  The 

mortgagor's  interest,  whether  before  or  after  condition 
broken,  at  common  law  or  under  the  lien  theory,  can  only  be 
assigned  by  deed,  for  in  any  case  and  under  all  circumstances 
the  mortgagor  is  considered,  as  against  all  the  world  except 
the  mortgagee,  as  the  owner  of  the  legal  estate,  which  he 
can  convey  as  long  as  his  equity  of  redemption  has  not  been 
barred  or  foreclosed.1  As  against  the  mortgagee,  the  mort- 
gagor's assignee  has  merely  the  rights  of  the  mortgagor 

Adams,  15  Mass.  233 ;  Lane  v.  Davis,  225.  This  is  always  the  case,  in  the  ah- 
sence  of  an  express  contract,  where  the  debts  secured  by  the  same  mortgage 
fall  due  at  the  same  time.  But  where  they  fall  due  at  different  periods,  in  very 
many  of  the  States  one  has  priority  over  the  other  in  the  order  in  which  they  fall 
due.  The  effect  is  the  same  as  if  there  had  been  successive  and  independent 
mortgages  for  each  debt.  Stanley  v.  Beatty,  4  Ind.  134;  Hough  v.  Osborne,  7 
Lid.  140;  Mc  Vay  v.  Bloodgood,  9  Port.  547;  U.S.  Bk.  w.  Covert,  13  Ohio, 
240 ;  Wood  v.  Trask,  7  "Wis.  566 ;  Preston  v.  Hodges,  50  111.  56 ;  Funk  o. 
McReynolds,  33  111.  497  ;  Mitchell  v.  Laden,  36  Mo.  532  ;  Thompson  v.  Field, 
38  Mo.  325;  Sangster  v.  Love,  11  Iowa,  580;  Reeder  v.  Carey,  13  Iowa,  274; 
Isettu.  Lucas,  17  Iowa,  506;  G.  Wathmeys  v.  Ragland,  1  Rand.  466;  Wilson 
v.  Hayward,  6  Fla.  171 ;  Hunt  v.  Styles,  10  N.  H.  466 ;  Larrabee  v.  Lambert, 
32  Me.  97 ;  contra,  Darby  v.  Hays,  17  Serg.  &  R.  400 ;  Henderson  v.  Herrod, 
10  Smed.  &  M.  631 ;  English  v.  Carney,  25  Mich.  178 ;  Grattan  v.  Wiggins,  23 
Cal.  30.  But  it  is  always  competent  for  the  parties  to  control  the  priority  of 
the  debts  secured  by  the  same  mortgage,  and  may  altogether  exclude  one  or 
more  from  the  enjoyment  of  the  security.  Bryant  v.  Damon,  6  Gray,  164 ; 
Langdon  v.  Keith,  9  Vt.  299 ;  Mechanics'  Bk.  v.  Bk.  of  Niagara,  9  Wend.  410 ; 
Eastman  v.  Foster,  8  Mete.  19;  Stevenson  v.  Black,  1  N.  J.  Eq.338;  Wright  v. 
Parker,  2  Aik.  212;  Collum  v.  Erwin,  4  Ala.  452;  Walker  v.  Dement,  42  111. 
272;  Bk.  of  England  v.  Tarleton,  23  Miss.  178;  Cooper  v.  Ulman,  Walk. 
(Mich.)  251 ;  Grattan  v.  Wiggins,  23  Cal.  30.  And  it  has  been  held  that 
the  mortgage-debts  in  the  hands  of  assignees  will  have  priority  in  the  order  of 
their  assignment.  Eastman  v.  Foster,  8  Mete.  19 ;  Noyes  v.  White,  9  Minn.  640 ; 
contra,  Page  v.  Pierce,  26  N.  H.  317 ;  Stevenson  v.  Black.  1  N.  J.  Eq.  338 ; 
Betz  v.  Heebner,  1  Penn.  280;  Henderson  v.  Herrod,  18  Miss.  631. 

i  Co.  Lit.  205  a,  Butler's  note,  96 ;  White  v.  Whitney,  3  Mete.  81 ;  White 
v.  Rittenmyer,  30  Iowa,  272;  Bigelow  v.  Wilson,  1  Pick.  485;  Buchanan  v. 
Monroe,  22  Texas,  537 ;  Ne wall  v.  Wright,  3  Mass.  138;  Hodson  v.  Treat,  7 
Wis.  263. 

250 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  332 

under  the  mortgage  ;  he  takes  the  estate  subject  to  the  mort- 
gage. And  this  is  the  case  with  a  second  mortgagee,  as  well 
as  with  an  absolute  purchaser.1 

§  332.  Rights  and  liabilities  of  assignees.  —  In  respect 
to  the  mortgaged  premises,  the  assignees  enjoy  all  the  rights, 
and  assume  all  the  liabilities,  of  their  respective  assignors. 
If  the  mortgagee  is  entitled  to  possession,  his  assignee  will 
.•ilso  be  entitled  to  possession  ;  he  may  appropriate  the  rents 
and  profits  while  in  possession,  and  in  the  same  manner  as  the 
mortgagee  maintain  all  the  actions  given  for  the  protection  of 
his  interests.2     The  assignee  of  the  mortgagor,  on  the  other 

1  Hartley  v.  Harrison,  24  N.  Y.  170;  Andrews  v.  Fisk,  101  Mass.  424;  Flan- 
agan v.  Westcott,  11  N.  J.  Eq.  264;  Kruse  v.  Scripps,  11  111.  98;  Frost  v. 
Shaw,  10  Iowa.  491. 

2  Jackson  v.  M inkier,  10  Johns.  480;  Jackson  v.  Bowen,  7  Cow.  13:  Jack- 
son v.  Hopkins,  18  Johns.  487;  Eastman  v.  Batchelder,  36  N.  H.  141;  Belding 
«.  Manly,  21  Vt.  551;  Erskine  v.  Townsend,  2  Mass.  493;  Northampton  Mills 
v.  Ames,  8  Mete.  1;  Henshaw  v.  Wells,  9  Humph.  568;  Phyfe  v.  Riley,  15 
Wend.  248;  Strang  v.  Allen,  44  111.  428;  Barraque  v.  Manuel,  7  Ark.  516; 
Bnlles  v.  Carli,  72  Minn.  113;  Whitney  v.  McKinney,  7  Johns.  Ch.  144; 
Miller  v.  Henderson,  10  N.  J.  Eq.  320;  Andrews  v.  McDaniel,  68  K  C 
385;  Walker  v.  Bank  of  Mobile,  6  Ala.  452 ;  McGuffey  v.  Finley,  20  Ohio, 
474;  Garrett  v.  Puckett,  15  Ind.  485;  Green  v.  Marble,  37  Iowa,  95;  Phillips 
v.  Bank  of  Lewiston,  18  Pa.  St.  394.  Whether  the  assignee  of  the  mortgage 
takes  it  and  the  debt  subject  to  all  existing  equities  between  the  original  par- 
ties, depends  in  the  first  instance  upon  the  nature  of  the  instrument  of  indebt- 
edness. If  it  be  a  bond  or  any  other  non-negotiable  instrument,  the  assignee 
will  take  both  it  and  the  mortgage  subject  to  all  the  defences,  which  might  be 
set  up  against  the  mortgagee.  Trustees  Union  College  v.  Wheeler,  61  N.  Y. 
•88;  Ingraham  v.  Disborough,  47  N.  Y.  421 ;  Davis  v.  Bechstein,  69  K  Y.  440; 
25  Am.  Rep.  218;  Pendleton  v.  Fay,  2  Paige  Ch.  202;  Ellis  v.  Mcsservie,  11 
Paige  Ch.  467;  s.  c,  2  Denio,  640;  Mott  v.  Clark,  9  Pa.  St.  399;  Twitchell  y. 
McMurtrie,  77  Pa.  St.  383;  Losey  v.  Simpson,  10  K  J.  Eq.  247;  Musgrove  v. 
Kennell,  23  N.  J.  Eq.  75 ;  Reeves  v.  Scully,  Walk.  (Mich.)  248 ;  Nicholls  v.  Lee, 
10  Mich.  526 ;  Croft  v.  Bunster,  9  Wis.  503 ;  Goulding  v.  Bunster,  lb.  503 ;  Horts- 
man  v.  Gerker,  49  Pa.  St.  282.  But  if  in  some  of  the  states  the  instrument  of  in- 
debtedness be  a  negotiable  note,  the  mortgage,  being  treated  as  incident  to  the 
debt,  receives  from  the  note  a  negotiable  character,  and  passes  to  the  assignee 
free  from  the  equities  existing  between  the  mortgagee  and  mortgagor,  unless  by 
express  terms  the  mortgage  is  assigned  subject  to  the  equities.  And  to  be 
free  from  them,  the  assignment  must  be  made  before  the  debt  is  due.     Car- 

251 


§  332         MORTGAGORS  AND  MORTGAGEES.       [PART  I. 

hand,  has  a  right  to  redeem  the  estate  and  call  the  mortga- 
gee  to  account  for  the  rents  and  profits  received  by  him 
while  in  possession,  even  though  he  has  permitted  the  mort- 
gagor to  enjoy  them  after  notice  of  the  assignment.  For 
while  in  possession  the  mortgagee  is  trustee  as  to  the  rents 
and  profits,  not  only  of  the  mortgagor,  but  also  of  the 
mortgagor's  assignees,  and  he  cannot  after  notice  of  the 
assignment  pay  them  over  to  the  mortgagor.  He  must 
apply  them  to  the  satisfaction  of  the  mortgaged  debt.1  But 
although  the  mortgagor's  assignee  has  a  right  to  redeem  the 

O  ©     O  ©  © 

mortgaged  premises,  he  does  not  by  the  assignment  assume 
the  personal  liability  of  the  mortgagor,  unless  the  deed  of 
assignment  in  express  terms  imposes  such  liability  upon  the 
assignee  as  a  part  of  the  consideration.'2     Where  there  is  an 

penter  v.  Longan,  16  Wall.  271 ;  Kenicott  v.  Supervisors,  10  "Wall.  432 ; 
Sprague  v.  Graham,  29  Me.  160;  Pierce  v.  Faunce,  47  Me.  507;  Gould  t>. 
Marsh,  1  Hun,  566  ;  Jackson  v.  Blodgett,  5  Cow.  203 ;  Green  v.  Hart,  1  Johns. 
580;  Taylor  v.  Page,  6  Allen,  86;  Young  v.  Miller,  6  Gray,  152;  Breen  v. 
Seward,  11  Gray,  118;  Dutton  v.  Ives,  2  Mich.  515;  Bloomer  v.  Henderson,  8 
Mich.  395;  Cornell  v.  Hichens,  11  Wis.  353;  Webb  v.  Haselton,  4  Neb.  308; 
19  Am.  Rep.  638.  But  in  other  courts,  the  negotiable  character  of  the  note  is 
held  not  to  extend  to  the  mortgage,  which  secures  its  payment.  And  although, 
so  far  as  the  personal  liability  of  the  mortgagor  on  the  note  is  concerned,  the 
assignee  takes  it  free  from  the  equities,  the  mortgage  in  his  hands  is  subject  to 
them.  Olds  v.  Cummings,  31  111.  188 ;  Sumner  v.  Waugh,  56  111.  531 ;  White 
v.  Sutherland,  64  111.  181 ;  Baily  v.  Smith,  14  Ohio  St.  396 ;  Bouligny  v.  For- 
tier,  17  La.  An.  121;  Johnson  v.  Carpenter,  7  Minn.  176. 

1  Goodman  v.  White,  26  Conn.  317;  Mannisig  v.  Markel,  19  Iowa,  104; 
Merriam  v.  Barton,  14  Vt.  501 ;  Smith  v.  Manning,  9  Mass.  422  ;  Bell  v.  Mayor 
of  N.  Y.,  10  Paige  Ch.  49;  Kruse  v.  Scripps,  11  111.  98;  Ruckman  v.  Astor,  9 
Paige  Ch.  517;  Getston  v.  Thompson,  29  Md.  595-  Gibson  v.  Crehore.  5  Pick. 
146;  Gordon  v.  Lewis,  2  Suran.  143. 

2  Furnas  v.  Durgin,  119  Mass.  500;  20  Am.  Rep.  341;  Mclnteer  v.  Shaw,  6 
Allen,  85;  Strong  v.  Converse,  8  Allen,  559;  Pike  v.  Goodnow,  12  Allen,  474; 
Braman  v.  Dowse,  12  Cush.  227;  Belmont  v.  Coman,  22  N.  Y.  438;  Vrooman 
v.  Turner,  69  N.  Y.  286;  25  Am.  Rep.  195;  Comstock  v.  Hitt,  37  111.  542; 
Johnson  v.  Morrell,  13  Iowa,  301;  Aufricht  v.  Northrop,  20  Iowa,  62;  Tiche- 
nor  v.  Dodd,  4  N.  J.  Ch.  454.  But  if  a  deed  only  contains  a  clause  to  the 
effect  that  the  conveyance  is  subject  to  a  mortgage,  it  will  not  impose  upon  the 
grantee  any  personal  liability  for  the  debt.  Trotter  v.  Hughes,  12  N.  Y.  74 ; 
Tillotson  v.  Boyd,  4  Sandf.  Ch.  516;  Weed  Sewing  Machine  Co.  v.  Emersou 

252 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  332 

agreement  of  that  kind,  it  is  clear  that  the  mortgagor  may 
enforce  it,  and  recover  of  his  assignee,  if  he,  the  mortgagor, 
has  been  compelled  to  pay  the  mortgage  debt;  but  how  far, 
and  whether  if  at  all,  the  mortgagee  may  take  advantage  of 
this  agreement  to  which  he  is  not  a  privy,  and  sue  the 
assignee  upon  it,  is  a  question  upon  which  the  authorities 
are  not  agreed.  The  better  opinion  seems  to  be  that, 
though  the  mortgagee  cannot  maintain  an  action  at  law 
upon  the  covenant  for  the  want  of  privity  between  him 
and  the  assignee,  he  will  in  equity  be  subrogated  to  the 
rights  of  the  mortgagor  in  the  agreement,  and  can  in  equity 
enforce  its  performance  in  his  own  behalf.1     He  could  also, 

115  Mass.  554;  Fiske  v.  Tolman,  124  Mass.  254;  26  Am.  Rep.  659;  Baum- 
gardner  v.  Allen,  6  Munf.  439;  Hull  v.  Alexander,  26  Iowa,  569;  Dunn  v. 
Rodgers,  43  111.  260 ;  Fowler  v.  Fay,  62  111.  375.  In  such  a  case,  the  only  effect 
produced  is  that  the  grantee  cannot  impeach  the  validity  of  the  mortgage. 
Ritter  v.  Phillips,  53  N.  Y.  586;  Green  v.  Turner,  38  Iowa,  112;  Perry  v. 
Kearns,  13  Iowa,  174;  Sweetzer  v.  Jones,  35  Vt.  317.  But  it  will  not  qualify 
a  general  covenant  against  incumbrances,  so  as  to  relieve  the  mortgagor  from 
liability,  unless  the  mortgage  is  expressly  excepted  from  the  operation  of  the 
covenant.  Spurr  v.  Andrew,  6  Allen,  420;  Estabrook  v.  Smith,  6  Gray, 
692 ;  Harlow  v.  Thomas,  15  Pick.  66. 

1  Lawrence  v.  Fox,  20  N.  Y.  268 ;  Garnsey  v.  Rogers,  47  K  Y.  223 ;  Klap- 
worth  v.  Dressier,  13  N.  J.  Ch.  62 ;  Ricard  v.  Saunderson,  41  N.  Y.  179 ;  Thorp 
v.  Keokuk  Coal  Co.,  48  N.  Y.  256 ;  Campbell  v.  Smith,  71  N.  Y.  26 ;  27  Am. 
Rep.  5;  Crawford  v.  Edwards,  33  Mich.  354;  Thompson  v.  Bertram,  14  Iowa, 
47G ;  Burr  v.  Beers,  24  K  Y.  178 ;  Corbett  v.  Waterman,  11  Iowa,  87 ;  Wilson 
v.  King,  23  N.  J.  150;  Herbert  v.  Doussan,  8  La.  An.  267;  Converse  v.  Cook, 
8  Vt.  61,  64 ;  Lennig's  Estate,  52  Pa.  St,  138 ;  Fithian  v.  Monks,  43  Mo.  520  ; 
contra,  Mellen  v.  Whipple,  1  Gray,  317;  Drury  v.  Tremont  Improvement 
Co.,  13  Allen,  168;  Marsh  v.  Pike,  10  Paige  Ch.  505;  s.  c,  1  Sandf.  Ch.  210; 
Morris  v.  Oakford,  9  Pa.  St.  498;  Carpenter  v.  Koons,  20  Pa.  St.  222.  And 
the  obligation  is  binding  upon  the  grantee,  although  he  does  not  sign  the  deed. 
By  his  acceptance  of  the  deed  he  undertakes  to  perform  all  the  conditions  and 
obligations  incident  thereto.  Crawford  v.  Edwards,  33  Mich.  354 ;  Spaulding 
v.  Hallenbeck,  35  N.  Y.  204.  Huyler  v.  Atwood,  26  N.  J.  Eq.  504 ;  Atlantic 
Dock  Co.  v.  Leavitt,  54  N.  Y.  35.  The  statement  in  the  text,  that  the  mort- 
gagee cannot  maintain  an  action  at  law  on  the  purchaser's  promise  to  pay  the 
mortgage-debt,  is  not  in  accord  with  the  majority  of  the  decisions.  It  involves 
the  question  whether  a  stranger  can  maintain  an  action  on  a  contract,  which 
was  made  to  another  for  his  benefit;  and  upon  this  general  question,  the  author- 
ities are  not  agreed.     The  author  believes  that  there  is  not  a  sufficient  privity 

253 


§  333         MORTGAGORS  AND  MORTGAGEES.       [PART  I. 

in  those  States  where  choses  in  action  may  be  levied  upon 
and  sold  under  execution,  pursue  that  remedy  in  a  court 
of  law. 

§  333.  Effect  of  payment  or  tender  of  payment. — If 

payment  or  tender  of  payment,  by  parties  having  the  right 
to  redeem,  be  made  when  the  debt  falls  due,  it  works  a  com- 
plete discharge  of  the  mortgage,  divests  the  mortgagee  of 
all  his  rights  and  remits  to  the  mortgagor  all  his  rights  at 
common  law,  as  fully  as  if  there  had  been  no  mortgage. 
And  if  the  mortgagee  is  in  possession,  ejectment  will  lie, 
and  he  will  be  ousted  without  any  formal  release  or  discharge 
of  the  mortgage.1  A  formal  discharge  of  the  mortgage 
would,  however,  be  required,  if  the  mortgage  contained  a 
clause  which  provides  for  a  conveyance  when  the  condition 
is  performed.2  This  will  be  found  to  be  the  general  rule  in 
all  the  States.  But  where  the  tender  or  payment  is  made 
after  the  condition  has  been   broken,  the  same  variance  of 

of  contract  to  support  an  action  at  law  upon  the  promise  to  pay,  unless  the 
contract  creates  a  bailment.  If  money  be  given  to  A.  to  hand  to  B.,  it  is  a 
mandatum,  and  B.  may  recover  it  from  A. ;  B.  is  a  quasicestui  que  trust.  But 
if  A.  promises  B.  to  pay  a  sum  of  money  to  C,  in  sati-faction  of  a  debt  owing 
by  A.  to  B.,  there  is  no  bailment,  and,  therefore,  no  obligation  to  C.  But  see 
the  author's  article  on  the  subject  in  11  Cent.  L.  J.  161. 

1  Whitcomb  v.  Simpson,  39  Me.  21;  Camp  v.  Smith,  5  Conn.  80;  Erskine 
v.  Townsend,  2  Mass.  495;  Holman  v.  Bailey,  3  Mete.  55;  Doody  v.  Pierce,  9 
Allen,  141;  Stewart  v.  Crosby,  50  Me.  130;  Currier  v.  Gale,  9  Allen,  522; 
Maynard  v.  Hunt,  5  Pick.  240;  Munson  v.  Munson,  30  Conn.  425.  But  the 
payment  cannot  be  enforced  by  either  party  before  the  debt  falls  due,  and  the 
mortgagee  may  refuse  to  accept  it.  But  if  the  debt  and  interest  up  to  the  fixed 
dav  of  payment  be  tendered,  it  will  have  the  same  effect  upon  the  mortgage 
as  if  tendered  on  the  proper  day.  Burgoyne  v.  Spurling,  Cro.  Car.  283; 
Brown  v.  Cole,  14  Sim.  427;  Scott  v.  Frink,  53  Barb.  533;  Abbe  v.  Goodwin, 
7  Conn.  377 ;  Hoyle  v.  Cazabat,  25  La.  An.  438.  And  although  nothing  but 
actual  payment  will  extinguish  the  debt,  a  simple  tender  of  payment  will  dis- 
charge the  mortgage,  and  prevent  a  subsequent  foreclosure.  Co.  Lit  209  b; 
Martindale  v.  Smith,  1  Q.  B.  389;  Willard  v.  Harvej-,  5  N.  H.  252;  Kortright 
v.  Cady,  21  N.  Y.  343;  Darling  v.  Chapman,  14  Mass.  101;  Maynard  v.  Hunt, 
supra,-  Crain  v.  McGoon,  86  LI.  431 ;  29  Am.  Rep.  37 

2  See  cases  cited  in  preceding  note  (1) 

254 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  333 

opinion  is  encountered  as  in  other  branches  of  the  law  of 
mortgages,  where  the  common-law  and  lien  theories  con- 
flict.  At  common  law,  since  the  default  made  the  estate 
absolute  in  the  mortgagee,  and  left  in  the  mortgagor  only 
the  equity  of  redemption,  the  mere  payment  or  tender  of 
payment  will  not  revest  the  legal  title  in  the  mortgagor.  A 
formal  discharge  is  requisite,  and  if  the  mortgagee  refuses 
to  make  it,  the  mortgagor's  only  remedy  is  in  equity,  a  pro- 
ceeding to  redeem  the  property.  He  cannot  maintain  an 
action  of  ejectment,  for  he  has  no  legal  estate.1  In  those 
States  where  the  mortgage  is  regarded  as  a  lien,  even  after 
condition  broken,  a  tender  of  payment  as  well  as  payment 
will  operate  as  a  discharge  or  extinguishment  of  the  mort- 
gage both  before  and  after  the  default.  And  if  the  mort- 
gagee  is  in  possession,  an  ejectment  suit  may  be  instituted 
against  him.  The  mortgagor  is  not  obliged  to  resort  to> 
equity  to  obtain  a  formal  cancellation  of  the  mortgage.2 


1  Smith  v.  Kelly,  27  Me.  237 ;  Stewart  v.  Crosby,  50  Me.  130 ;  Howard  u. 
How,  3  Mete.  548;  Holman  v.  Bailey,  lb.  55;  Howe  v.  Lewis,  14  Pick.  329; 
Grover  v.  Flye,  5  Allen,  543 ;  Pillsbury  v.  Smyth,  25  Me.  427 ;  Dyer  v.  Tooth- 
aker,  61  Me.  380;  Smith  v.  Vincent,  15  (Jonn.  1 ;  Phelps  v.  Sage,  2  Day,  151; 
Cross  v.  Robinson,  21  Conn.  379.  Technically,  this  is  true.  But  even  in  those 
States,  proof  of  payment  or  tender  of  payment  will  prevent  the  enforcement 
of  the  mortgage  against  the  mortgagor.  Wade  v.  Howard,  1 1  Pick.  289 ; 
Breckenridge  v.  Brooks,  2  A.  K.  Marsh.  337;  Slayton  v.  Mclntire,  11  Gray 
271 ;  Gray  v.  Jenks,  3  Mason,  520;  "Williams  v.  Thurlow,  31  Me.  392;  Faulk- 
ner v.  Breckenbrough,  4  Rand.  245 ;  Pike  v.  Goodnow,  12  Allen,  472 ;  Arnot 
v.  Post,  6  Hill.  65. 

2  Jackson  v.  Stackhouse,  1  Cow.  122;  Kortright  v.  Cady,  21  N.  Y.  343; 
Farmers'  Ins.,  etc.,  Co.  v.  Edwards,  26  Wend.  541;  Runyan  v.  Mersereau,  11 
Johns.  538;  Stoddard  v.  Hart,  23  N.  Y.  556;  Den  v.  Spinning,  1  Halst.  471; 
Shields  v.  Lozear,  34  N.  J.  L.  496;  Southerin  v.  Mendum,  5  N.  H.  431 ;  Swett 
v.  Horn,  1  K  H.  382 ;  Rickett  v.  Madeira,  1  Bawle,  325 ;  Thomas'  Appeal,  3 
Pa.  St.  378;  Paxon  v.  Paul,  3  Har.  &  McH.  399;  Furbish  v.  Goodwin,  25  N. 
H.  425 ;  Howard  v.  Gresham,  27  Ga.  347 ;  Champney  v.  Coope,  32  K  Y.  543 ; 
Ledyard  v.  Chapin,  6  Ind.  320;  Griffin  v.  Lovell,  42  Miss.  402;  Ryan  v.  Dun- 
lap,  17  111.  40;  Holt  v.  Rees,  44  111.  30;  Armitage  v.  Wickliffe,  12  B.  Mon. 
488;  Perkins  v.  Dibble,  10  Ohio,  433;  M'Nair  v.  Picotte,  33  Mo.  57;  Caruth- 
ers  v.  Humphrey,  12  Mich.  270;  Schinkel  v.  Hanewinkle,  19  La.  An.  260; 
Ladue  v.  Detroit,  etc.,  R.  R.,  13  Mich.  396;  Briggs  v.  Seymour,  17  Wis.  255; 

255 


§    334  MORTGAGORS    AND    MORTGAGEES.  [PART   I. 

§  334.  Who  may  redeem.  — If  the  mortgage-debt  is  ac- 
tually paid,  the  payment  will,  as  against  the  mortgagee,  ex- 
tinguish the  mortgage  and  the  mortgagee's  rights  thereunder, 
whoever  pays  the  debt.  But  in  order  that  a  tender  of  pay- 
ment may  have  that  effect,  it  must  be  made  by  some  one 
who  is  entitled  to  redeem.  Any  one,  who  has  an  interest 
in  the  mortgaged  premises,  claiming  under  the  mortgagor, 
has  this  right.  And  this  is  the  case,  whether  his  interest  be 
legal  or  equitable,  an  estate  or  a  lien.  The  only  requisite 
is  a  privity  of  estate  with  the  mortgagor.  Among  such 
may  be  enumerated  grantees,  subsequent  incumbrances, 
whether  they  be  junior  mortgagees  or  judgment-creditors, 
heirs,  devisees,  personal  representatives,  tenants  for  years, 
the  husband  for  his  curtesy,  and  the  widow  for  her  dower 
or  jointure.1  But,  in  order  that  tender  of  payment  may 
have  the  effect  of  extinguishing  the  mortgage,  the  whole 
debt  must  be  tendered,  together  with  all  the  interest  and 
costs  that  have  accrued  thereon  to  the  date  of  the  tender. 
Therefore,  if  the  widow,  for  example,  desires  to  redeem  for 
the  preservation  of  her  dower  right,  she  must  offer  to  pay 

Fisher  v.  Otis.  3  Chand.  (Wis.)  83;  McMillan  v.  Richards,  9  Cal.  365;  John- 
son  v.  Sherman,  15  Cal.  287 ;  Crain  v.  McGoon,  86  111.  431 ;  29  Am.  Rep.  37. 
1  Lomax  v.  Bird,  1  Vern.  182 ;  Gibson  v.  Crehore,  5  Pick.  146 ;  Grant  v. 
Duane,  9  Johns.  591 ;  Ex  parte  Willard,  5  Wend.  94;  Averill  v.  Taylor,  8  N. 
Y.  44;  Manning  v.  Markel,  19  Iowa,  104;  Boarman  v.  Catlett,  13  Smed.  &  M. 
149;  Scott  v.  Henry,  13  Ark.  113;  Moore  v.  Beasom,  41  N.  H.  215;  Merriam 
v.  Barton,  14  Vt.  501;  Smith  v.  Manning,  9  Mas*.  422;  Fray  v.  Drew,  11  Jur. 
(n.  S.)  130;  Burnett  v.  Dennistor,  5  Johns.  Ch.  35;  Thompson  v.  Chandler,  7 
Greenl.  377;  Saunders  v.  Frost,  5  Pick.  259;  Bacon  v.  Bowdoin,  22  Pick.  401 ; 
Goodman  v.  White,  26  Conn.  317 ;  Newhall  v.  Savings  Bank,  101  Mass.  431 ; 
Brainard  v.  Cooper,  10  N.  Y.  356 ;  Hoyt  v.  Martense,  16  N.  Y.  231 ;  Dunlap 
v.  Wilson,  32  111.  517  ;  Mellisht>.  Robertson,  25  Vt.  603 ;  Rogers  v.  Myers,  68  111. 
92;  Kimmel  v.  Willard,  1  Dougl.  (Mich.)  217;  Wiley  v.  Ewing,  47  Ala.  418; 
Calkins  v.  Munsell,  2  Root,  333;  Young  v.  AVilliams,  17  Conn.  393;  McLaugh- 
lin v.  Curts,  27  Wis.  644 ;  Hamilton  v.  Dobbs,  19  K  J.  Eq.  227  :  McArthur  v. 
Franklin,  16  Ohio  St.  193 ;  Hitt  v.  Holliday,  2  Litt.  332 ;  Van  Buren  v.  Olm- 
stead,  5  Paige  Ch.  9;  Stainback  v.  Geddy,  1  Dev.  &  B.  Eq.  479;  Chandler  v. 
Dyer,  37  Vt.  345 ;  Bridgeport  v.  Blinn,  43  Conn.  274 ;  Kingsbury  r.  Buckner, 
70  111.  514. 

256 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  335 

the  whole  debt.  The  mortgagee  can  refuse  to  accept  only 
her  share  of  it.  And  this  is  true  of  any  one  who  owns  only 
a  portion  of  the  mortgaged  premises.1 

§  335.  What  acts  extinguish  the  mortgage.  —  No  acts, 
which  do  not  amount  to  a  payment  of  the  debt  or  a  release 
of  the  mortgage,  will  cause  an  extinguishment  of  the  mort- 
gage.  A  mere  change  in  the  form  of  the  debt  —  as  the 
substitution  of  a  bond  for  a  note,  or  the  execution  of  anew 
note  in  the  place  of  the  old  one  —  will  not  have  that  effect, 
unless  such  substitution  or  change  is  made  with  the  inten- 
tion that  the  new  instrument  of  indebtedness  shall  be  ac- 
cepted as  an  actual  payment  of  the  old  debt.  And  this  has 
been  held  to  be  the  case  where  a  note  for  a  smaller  amount 
had  been  substituted.  When  and  how  the  intention  of  pay- 
ment can  be  shown  in  such  a  case  is  a  very  difficult  matter  to 
explain  by  any  concise  and  comprehensive  statement.  It 
depends  upon  the  facts  of  each  case,  and  is  itself  a  question 
of  fact,  whether  the  person  making  the  change  intended  it 
to  operate  as  a  satisfaction  of  the  old  debt.2 

1  McCabe  v.  Bellows,  7  Gray,  148 ;  McCabe  v.  Swap,  14  Allen,  191 ;  Gib- 
son v.  Crehore,  5  Pick.  146  ;  Smith  v.  Kelly,  27  Me.  237 ;  Chittenden  v.  Barney, 
5  Vt.  28 ;  Bell  v.  Mayor,  etc.,  10  Paige  Ch.  49 ;  Fletcher  v.  Chase,  16  N.  H.  42 ; 
Norris  v.  Moulton,  34  N.  H.  392 ;  Downer  v.  Wilson,  33  Vt.  1 ;  Seymour  v.  Davis, 
35  Conn.  264 ;  Mullanphy  v.  Simpson,  4  Mo.  319 ;  Douglass  v.  Bishop,  27  Iowa, 
216 ;  Gliddon  v.  Andrew,  14  Ala.  733 ;  Knowles  v.  Rablin,  20  Iowa,  101 ; 
Lamb  v.  Montague,  112  Mass.  352;  Franklin  v.  Gorham,  2  Day,  142. 

2  Parkhurst  v.  Cummings,  56  Me.  159;  Dana  v.  Binney,  7  Vt.  493;  Davis 
v.  Maynard,  9  Mass.  242;  Fowler  v.  Bush,  21  Pick.  230;  Baxter  v.  Mclntire, 
13  Gray,  168;  Grafton  Bk.  v.  Foster,  11  Gray,  265;  Elliott  v.  Sleeper,  2  N. 
H.  525;  Mitchell  v.  Clark,  35  Vt.  104;  Pond  v.  Clark,  14  Conn.  334;  Box- 
heimer  v.  Gunn,  24  Mich.  376;  Dunshee  v.  Parmelee,  19  Vt.  172;  Hadlock  v. 
Bullfinch,  31  Me.  246;  Markell  v.  Eichelberger,  12  Md.  78;  Euston  v.  Fri- 
day, 2  Rich.  Eq.  427;  Bank  v.  Rose,  1  Strobh.  Eq.  257;  BrinckerhofFu.  Lan- 
sing, 4  Johns.  Ch.  65;  Barker  v.  Bell,  37  Ala.  359;  Vogle  v.  Ripper,  34  111. 
106;  Cleveland  v.  Martin,  2  Head,  128;  Gault  v.  McGrath,  32  Pa.  St.  392; 
Rogers  v.  Traders'  Ins.  Co.,  6  Paige  Ch.  583;  Applegate  v.  Mason,  13Ind.75; 
Williams  v.  Starr,  5  Wis.  548;  Jordan  v.  Smith,  30  Ohio,  500;  Dillon  v. 
Byrare,  5  Cal.  455. 

17  257 


§    336  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

§  336.  The  effect  of  a  discharge.  —  Where  the  mortgage 
is  discharged  by  the  mortgagor's  payment  of  the  debt,  it  is 
extinguished  altogether  ;  particularly,  where  there  are  junior 
incumbrancers.  The  mortgagor  cannot  keep  it  alive,  even 
though  he  goes  through  the  formality  of  an  assignment.  A 
merger  results  from  the  union  of  the  two  interests  in  one 
person.1  It  has,  however,  been  held  that  if  there  are  no 
junior  incumbrancers,  a  satisfied  mortgage  may  be  revived, 
and  be  made  a  good  and  effectual  security  for  a  new  debt 
between  new  parties.  But  the  position  is  not  without  doubt 
as  to  its  soundness.2  If  the  mortgage  has  been  delivered  up 
and  cancelled  through  fraud,  accident  or  mistake,  the  court 
of  equity  will  revive  it  and  enforce  it,  at  least  against  the 
mortgagor  and  all  parties  claiming  under  him,  who  have  no- 
tice of  the  equity.  And  a  subsequent  purchaser  will  be 
bound  by  the  equity  if  the  mortgage  has  not  been  satisfied 
on  the  records ;  for  he  is  compelled  to  take  notice  of  that 
fact,  and  it  is  sufficient  to  put  him  on  his  inquiry.3 

1  Wadsworth  v.  Williams,  100  Mass.  126;  Strong  v.  Converse,  8  Allen, 
559 ;  Wade  v.  Beldmeir,  40  Mo.  486 ;  McGiven  v.  Wheelock,  7  Barb.  22 ; 
Mead  v.  York,  6  N.  Y.  449;  Thomas'  Appeal,  30  Pa.  St.  378;  Richard  v. 
Talbird,  Rich.  Ch.  158;  Swift  v.  Kraemer,  13  Cal.  526;  Ledyard  v.  Chapin, 
6  Ind.  320;  Pelton  v.  Knapp,  21  Wis.  63 ;  Robinson  v.  Urquhart,  12  N.  J.  £q. 
515 ;  Peckham  v.  Haddock,  36  111.  38 ;  Fewell  v.  Kessler,  30  Ind.  195 ;  Per- 
kins v.  Steame,  23  Texas,  661;  Brown  v.  Lapham,  3  Cush.  554;  Gardners. 
James,  7  R.  I.  396 ;  Champney  v.  Coope,  32  N.  Y.  543 ;  Bowman  v.  Manter, 
33  N.  H.  530;  Large  v.  VanDoren,  14  N.J.  Eq.  208;  Carlton  v.  Jackson,  12 
Mass.  592. 

2  Marvin  v.  Vedder,  5  Cow.  671 ;  Beardsley  v.  Tuttle,  11  Wis.  74;  Walker 
v.  Snediker,  1  Hoffm.  Ch.  145 ;  Star  v.  Ellis,  6  Johns.  Ch.  392 ;  Whiting  v. 
Beebe,  12  Ark.  428 ;  Johnson  v.  Anderson,  30  Ark.  745 ;  Hurser  v.  Anderson, 
4  Edw.  Ch.  17 ;  International  Bk.  v.  Bowen,  80  111.  541 ;  Jordan  v.  Furlong, 
19  Ohio  St.  89.  And  it  seems  the  objection  to  this  principle  is  greatly  les- 
sened, if  not  altogether  removed,  if  the  assignment  is  made  at  the  mort- 
gagor's request  to  a  third  person.  Although  lifeless  in  this  third  person's 
hands,  it  will  be  a  good  and  binding  security  when  assigned  to  a  new  creditor 
upon  a  new  or  different  consideration.  Bolles  v.  Wade,  4  N.  J.  Eq.  458 ; 
Sheddy  v.  Gervan,  113  Mass.  378  ;  Hoy  v.  Bramhall,  11  N.  J.  Eq.  563 ;  Gould- 
ing  v.  Bunster,  9  Wis.  513. 

3  Grimes  v.  Kimball,  3  Allen,  578;  Joslyn  v.  Wyman,  5  Allen,  63 ;  Howe 
v.  Wilder,  11  Gray,  267 ;  Lawrence  v.  Stratton,  6  Cush.  163  ;  Stover  v.  Wood, 

258 


CH.  X.]       MORTGAGORS  AND  MORTGAGEES.        §  337 

§  337.  When  payment  will  work  an  assignment.  —  Pay- 
ment of  the  debt  by  the  mortgagor,  as  has  been  explained, 
always  discharges  the  mortgage,  though  the  satisfaction  by 
the  mortgagee  be  in  form  an  assignment  to  himself  or  to  one 
in  trust  for  him.1  And  where  the  debt  is  paid  by  a  volun- 
teer—  a  stranger  who  is  not  interested  in  the  mortgaged 
premises — the  mortgage  will  be  discharged  .  and  extin- 
guished, unless  an  assignment  has  actually  been  made  to 
him.  He  cannot  set  up  the  claim  to  an  equitable  assign- 
ment, although  he  may  have  paid  the  debt  at  the  mortgagor's 
request.2  But  when  the  payment  is  made  by  one  who  is  not 
under  a  primary  personal  obligation  to  pay,  who  is  second- 
arily liable  as  surety  or  indorser,  or  who  has  an  interest  in 
the  mortgaged  property,  and,  consequently,  a  right  to  re- 
deem, payment  does  not  always  operate  as  a  discharge. 
And  the  question  is  not  determined  so  much  by  the  form  of 
the  acknowledgment  of  payment  as  the  intention  of  the 
party  paying.  That  intention  may  be  derived  from  the 
facts  connected  with  the  transaction  and  established,  by  parol 
evidence.  And  where  it  is,  beyond  a  doubt,  to  the  interest 
of  the  one  paying  that  the  mortgage  should  be  kept  alive, 
equity  will  look  upon  the  transaction  as  an  assignment  and 
not  a  discharge.     Especially  is  this  the  case  where  the  per- 

26  N.  J.  Eq.  417 ;  Fassett  v.  Smith,  23  N.  Y.  252 ;  Middlesex  v.  Thomas,  20 
N.  J.  Eq.  39;  Weir  v.  Mosher,  19  Wis.  311;  Vannice  v.  Bergen,  16  Iowa, 
555;  De  Yampert  v.  Brown,  28  Ark.  166;  Stanley  v.  Valentine,  79  111.  544; 
Mallet  v.  Page,  8  Ind.  364;  Robinson  v.  Sampson,  23  Me.  388.  And  such 
relief  will  also  be  afforded  where  the  mortgage  has  been  satisfied,  instead  of 
being  assigned.  Dudley  v.  Bergen,  23  N.  J.  Eq.  397 ;  Champlin  v.  Laytin, 
18  Wend.  407;  Russell  v.  Mixer,  42  Cal.  475;  Bruce  v.  Bonney,  12  Gray,  107. 
But  it  must  be  a  mistake  of  fact.  If  the  satisfaction  is  obtained 
through  a  mistake  of  law,  no  relief -will  be  granted,  unless  from  the  tender 
age  or  weak  mind  of  the  person  injured,  the  charge  of  undue  influence  may 
be  established.  Peters  v.  Florence,  38  Pa.  St.  194;  Hampton  v.  Nicholson, 
23  N.  J.  Eq.  423;  Bentley  v.  Whittlemore,  1  lb.  366 ;  Smith  v.  Smith,  15  N. 
H.  55. 

1  See  ante,  sects.  333,  336. 

1  Downer  v.  Wilson,  33  Vt.  1.     See  Guy  v.  De  Upsey,  16  Cal.  195. 

259 


§  338         MORTGAGORS  AND  MORTGAGEES.       [PART  I. 

son  paying  has  only  a  part  interest  in  the  premises,  or  is  a 
surety,  and  by  paying  becomes  entitled  to  contribution  or 
satisfaction  from  the  mortgagor  and  others  interested  in  the 
property.  Payment  in  such  cases  never  works  a  discharge ; 
the  mortgage  survives,  and  may  afterwards  be  enforced 
against  all  parties  affected  with  notice.1 

§  338.   Registry  of  mortgages,  and  herein  of  priority.  — 

It  is  a  general  rule  in  this  country  that  if  a  mortgage  is  duly 
registered  in  the  recorder's  office,  the  record  will  be  con- 
structive notice  of  the  mortgage  to  all  subsequent  purchasers 
and  incumbrancers,  and  gives  to  it  a  priority  over  such  sub- 
sequently acquired  interests.-'  But  the  record  is  only  notice 
of  the  mortgage  as  recorded ;  and  if  there  is  an  error  in  the 
registration,  as,  for  example,  showing  the  mortgage  to  be 
security  for  a  less  amount,  it  has  priority  over  subsequent 
purchasers  for  the  amount  recorded,  and  not  for  the  actual 
amount  expressed  in  the  mortgage.     The  purchaser  is  not 

1  Hinds  v.  Ballou,  44  N.  H.  619;  Stantons  v.  Thompson,  49  N.  H.  272; 
Butler  v.  Seward,  10  Allen,  466;  Mickles  v.  Townsend,  18  N.  Y.  575;  Leavitt 
o.  Pratt,  53  Me.  14 ;  Kellogg  v.  Ames,  41  N.  Y.  259 ;  Abbott  v.  Kasson,  72 
Pa.  St.  185;  Walker  v.  King,  44  Vt.  601 ;  Wadsworth  v.  Williams,  100  Mass. 
126;  Wade  v.  Baldmier,  40  Mo.  486;  Champlin  v.  Laytin,  18  Wend.  407; 
Skillman  v.  Teeple,  1  N.  J.  Eq.  232 ;  Dudley  v  Bergen,  23  N.  J.  Eq.  397 ; 
Russell  v.  Mixer,  42  Cal.  475 ;  Baker  v.  Flood,  103  Mass.  47.  And  payment 
by  a  purchaser  of  the  equity  of  redemption  will  not  operate  in  equity  as  an 
extinguishment  of  the  mortgage,  as  against  the  mortgagor,  sureties  and 
junior  incumbrancers,  although  the  mortgage  is  formally  satisfied  and  can- 
celled, unless  he  has  become  primarily  liable  by  his  assumption  of  the  pay- 
ment of  the  mortgage,  as  the  consideration  of  the  conveyance  to  him.  Sav- 
age v.  Hall,  12  Gray,  363;  Pitts  v.  Aldrich,  11  Allen,  39;  Abbott  v.  Kasson, 
72  Pa.  St.  183?  Pool  v.  Hathaway,  22  Me.  85;  Hatch  v.  Kimball,  16  lb.  146 ; 
Skeeltt.  Spraker,  8  Paige  Ch.  182;  Millspaugh  v.  McBride,  7  Paige  Ch.  509; 
Shin  v.  Fredericks,  56  111.  443 ;  Mobile  Branch  Bank  v.  Hunt,  8  Ala.  876 ; 
Lyon  v.  Mcllvaine,  24  Iowa,  12;  Fitch  v.  Cotheal,  2  Sandf.  Ch.  29;  Lilly  v. 
Palmer,  51  111.  331 ;  Mickels  v.  Townsend,  18  N.  Y.  575 ;  Frey  v.  Yander- 
hoof,  15  Wis.  397.  But  in  law,  an  actual  formal  assignment  is  required  to 
keep  the  mortgage  alive.  Den  v.  Dirnon,  10  N.  J.  L.  156;  Kinna  v.  Smith, 
17  N.  J.  Eq.  14;  Wade  v.  Howard,  11  Pick.  289. 

2  See  post,  sects.  814-816,  where  the  recording  law  is  discussed  generally. 

260 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  339 

required  by  the  registry  laws  to  inspect  the  original  deeds, 
for  he  is  permitted  to  presume  that  the  record  is  a  correct 
copy.  So,  also,  if  a  mortgage  appears  on  the  record, 
through  an  error  in  registration,  to  be  invalid  from  defec- 
tive execution,  the  investigator  of  titles  is  not  required  to  go 
behind  the  registry  and  inquire  into  the  cause  of  the  inva- 
lidity ;  nor  is  he  affected  by  such  a  record  with  notice  of  the 
equities  which  might  arise  out  of  the  irregular  deed  between 
the  parties  to  the  same.1  The  registration  must  also  comply 
with  the  essential  requirements  of  the  registry  laws,  in  order 
to  raise  a  constructive  notice  of  the  mortgage.  What  con- 
stitutes a  proper  record  is  the  same  in  most  of  the  States, 
whether  the  deed  be  a  mortgage  or  an  absolute  conveyance. 
The  subject,  therefore,  will  be  more  clearly  elucidated  under 
the  head  of  titles  to  real  property.2 

§  339.  Rule  of  priority  from  registry,  its  force  and  ef- 
fect. —  But,  notwithstanding  the  registry  laws  provide  for 
the  recording  of  mortgages  like  other  deeds,  the  general 
rule  is  that  an  unrecorded  mortgage  is  still  good  between 
the  parties  themselves,  and  all  other  persons  claiming  under 
them,  without  a  valuable  consideration,  or  with  notice  of  the 

1  Russell  v.  Shields,  11  Ga.  636;  Dewitt  v.  Moulton,  17  Me.  418;  Frost  v. 
Beekman,  1  Johns.  Ch.  288;  s.  c,  18  Johns.  544;  Peck  v.  Mallams,  10  N.  Y. 
509;  Johns  v.  Scott,  5  Md.  81 ;  Taylor  v.  Hotchkiss,  2  La.  An.  917  ;  Barrett  v. 
Shaubhut,  5  Minn.  323;  Terrell  v.  Andrew  Co.,  44  Mo.  309;  Farmers'  Bk.  v. 
Bronson,  14  Mich.  369.  A  different  rule  is  held  in  other  States,  under  the 
peculiar  phraseology  of  their  statutes  of  registration.  Brooke's  Appeal,  64 
Pa.  St.  127;  Wood's  Appeal,  82  Pa.  St.  116;  Tousley  v.  Tousley,  5  Ohio  St. 
78;  Mims  v.  Mims,  35  Ala.  23;  Merrick  v.  Wallace,  19  111.  486.  But  the  in- 
dex is  not  a  part  of  the  record,  and  an  error  appearing  therein  will  not  pre- 
judice the  rights  of  the  mortgagee.  It  is  not  even  necessary  for  the  mortgage 
to  be  indexed.  Curtis  v.  Lyman,  24  Vt.  338;  Dodge  v.  Potter,  18  Barb.  193  ; 
Mutual  Life  Ins.  Co.  v.  Dake,  1  Abb.  N.  C.  381 ;  Green  v.  Garrington,  16 
Ohio  St.  548;  Throckmorton  v.  Price,  28  Texas,  605;  Bishop  v.  Schneider, 
46  Mo.  472;  2  Am.  Rep.  533;  Shell  v.  Stein,  76  Pa.  St.  398;  18  Am.  Rep. 
416;  contra,  Gwyn  v.  Turner,  18  Iowa,  1 ;  Walley  v.  Small,  25  Iowa,  184; 
Pringle  v.  Dunn,  37  Wis.  449  ;  19  Am.  Rep.  772. 
2  See  post,  sects.  814-816. 

261 


§    339  MORTGAGORS    AND    MORTGAGEES.  [PART    I. 

mortgage.1  If  the  subsequent  purchase  is  for  value  and 
without  notice,  the  recorded  deed  has  the  priority  over  the 
unrecorded  mortgage.  And  a  recorded  mortgage  has  been 
held  to  take  precedence  to  a  prior  unrecorded  mortgage, 
even  though  the  mortgage-debt  of  the  former  was  incurred 
at  a  time  anterior  to  the  execution  of  the  latter  mortgage.2 

1  And  the  rule  is  the  same  if  the  mortgage  has  been  defectively  executed. 
Nice's  Appeal,  54  Pa.  St.  200;  Boyce  v.  Shiver,  3  S.  C.  515;  Phillips  v.  Pear- 
son, 27  Md.  242;  Kaconillet  v.  Sansevain,  32  Cal.  376;  Bibb  v.  Baker,  17  B. 
Mon.  292;  Dorrow  v.  Kelly,  2  Dall.  142;  Copeland  v.  Copeland,  28  Me.  525; 
Sparks  v.  State  Bank,  7  Blackf.  469;  Harris  v.  Norton,  16  Barb.  264;  Leggett 
v.  Bullock,  Busb.  L.  283;  Woodworth  v.  Guzman,  1  Cal.  203;  Dearing  v. 
Watkins,  16  Ala.  20;  Bell  v.  Thomas,  2  Iowa,  384;  Wyatt  v.  Stewart,  34 
Ala.  716;  contra,  White  v.  Denman,  1  Ohio  St.  110;  Henderson  v.  MeGee, 
6  Heisk.  55.     But  see  post,  sect.  815. 

2  Taylor  v.  Thomas,  5  N.  J.  Eq.  331;  Grant  y..Bissett,  1  Caines's  Cas.  112; 
Doe  v.  Bank  of  Cleveland,  3  McLean,  140;  Barretts.  Shaubhut,  5  Minn.  323; 
Burke  v.  Allen,  3  Yeates,  351;  Holbrook  v.  Dickenson,  56  111.  497;  Hodgen 
v.  Guttery,  58  111.  431 ;  Pomet  v.  Scranton,  1  Miss.  406;  Harrington  v.  Allen, 
48  Miss.  493;  Ohio  Life  Ins.  Co.  v.  Ledyard,  8  Aia,  866;  Reychaud  v.  Citi- 
zens' Bank,  21  La.  An.  262 ;  Routh  v.  Spencer,  38  Ind.  393 ;  Tice  v.  Annin,  2 
Johns.  Ch.  125;  Vanderkemp  v.  Shelton,  11  Paige,  28;  Buchanan  v.  Inter- 
national Bank,  78  HI.  500;  Tripe  v.  Marcy,  39  N.  H.  439;  Mathews  ».  Aiken, 
1  N.  Y.  595.  Though  the  record  be  destro}-ed,  the  priority  gained  by  regis- 
tration will  not  be  affected  thereby,  if  it  can  be  established  by  other  evidence. 
Alvis  v.  Morrison,  61  111.  181 ;  14  Am.  Rep.  354;  Steele  v.  Boone,  75  111.  457; 
Alston  v.  Alston,  4  S.  C.  116.  The  parties  may  also  by  agreement  change  the 
order  of  priority,  and  give  to  a  subsequently  recorded  deed  priority  over  one 
already  recorded,  but  the  agreement  will  only  bind  the  parties  and  their  privies 
with  notice.  Gillig  v.  Maass,  28  N.  Y.  191 ;  Rhoades  v.  Canfield,  8  Paige  Ch. 
545;  Freeman  v.  Schroeder,  43  Barb.  618;  Conover  v.  Van  Mater,  18  N.  J.  L. 
481;  State  Bank  v.  Campbell,  2  Rich.  Eq.  179;  Clason  v.  Shepherd,  6  "Wis. 
369;  Sparks  v.  State  Bank,  7  Blackf.  469.  But  where  two  mortgages  are  exe- 
cuted and  recorded  simultaneously,  they  are  concurrent  liens  on  the  property. 
Stafford  v.  Van  Rensselaer,  9  Cow.  316;  Gausen  v.  Tomlinson,  23  N.  J.  Eq. 
405.  And  where  they  are  executed  simultaneously,  and  by  the  understanding 
of  the  parties,  express  or  implied,  one  is  not  to  have  priority,  an  earlier  record 
of  one  will  give  it  priority  over  the  other.  Daggett  v.  Rankin,  31  Cal.  327; 
Howard  v.  Chase,  104  Mass.  249.  But  if  one  of  the  mortgages  is  for  the  pur- 
chase-money, it  will  have  priority  over  one  for  some  other  debt,  although  tl.ey 
are  simultaneously  recorded.  Clark  v.  Brown,  3  Allen,  509;  Turk  v.  Funk, 
68  Mo.  18;  30  Am.  Rep.  771.  If  both  are  for  purchase-money,  they  will  be 
concurrent  liens.  Jones  v.  Phelps,  2  Barb.  Ch.  440;  Pomeroy  v.  Layting,  15 
Grav,  435. 

262 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  340 

Whether  a  mortgage  unrecorded  will  be  postponed  to  the 
lien  of  a  judgment  docketed  subsequently  has  been  decided 
differently  in  different  States.  In  some  of  the  States  the 
judgment  is  invariably  given  priority,1  while  in  others  the 
unrecorded  mortgage  will  take  precedence,  unless  the  mort- 
gaged property  has  been  levied  upon  in  execution  of  the 
judgment  and  sold  to  a  purchaser  for  value.2  If  there  is  any 
doubt  as  to  the  priority  of  the  judgment  in  such  a  case,  the 
true  rule  would  seem  to  require  the  question  to  depend  upon 
the  priority  in  execution  of  the  debts,  represented  respec- 
tively by  the  mortgage  and  the  judgment.  If  the  judgment 
debt  was  incurred  subsequently  to  the  execution  of  the 
mortgage,  the  judgment  when  docketed  should  have  priority 
over  the  unrecorded  mortgage,  for  the  judgment-creditor, 
in  entering  into  the  contract  which  caused  the  debt,  may 
have  relied  upon  the  apparently  unincumbered  condition  of 
the  debtor's  property. 

§  340.  Registry  of  assignments  of  mortgages  and  equi- 
ties of  redemption. — Since  the  registration  of  a  deed  is 
constructive  notice  only  to  subsequent  purchasers  and  incum- 
brancers, the  recording  of  an  assignment  of  the  morto-aofe, 
although  a  protection  against  other  assignees  and  purchasers 

1  Semple  v.  Bird,  7  Serg.  &  R.  290 ;  Friedley  v.  Hamilton,  17  Serg.  &  R. 
70;  Uhlin  v.  Hutchinson,  23  Pa.  St.  110;  Davidson  v.  Cowan,  1  Dev.  Eq.  470; 
Van  Thorniley  v.  Peters,  26  Ohio  St.  471 ;  Barker  v.  Bell,  37  Ala.  354 ;  Reich- 
ert  v.  McClure,  23  111.  516 ;  Moore  v.  Watson,  1  Root,  388 ;  Smith  v.  Jordan, 
25  Ga.  <G87.  But  if  the  judgment-creditor  has  notice  of  the  prior  unrecorded 
mortgage,  the  mortgage  will  of  course  take  precedence  to  the  judgment. 
Wertz's  Appeal,  65  Pa.  St.  306;  Britton's  Appeal,  45  Pa.  St.  172;  "Williams 
v.  Tatnall,  29  111.  553. 

2  Finch  v.  Winchelsea,  1  P.  Wms.  278;  Burn  v.  Burn,  3  Ves.  582;  Schmidt 
v.  Hoyt,  1  Edw.  Ch.  652;  Jackson  v.  Dubois,  4  Johns.  216;  Knell  v.  Green 
St.  Building  Ass'n,  34  Md.  67;  Hackett  v.  Callender,  32  Vt.  97;  Hampton  v. 
Levy,  1  McCord  Ch.  107  (hut  see  Miles  v.  King,  5  S.  C.  146) ;  Righter  v.  For- 
rester, 1  Bush,  278;  Morton  v.  Robards,  4  Dana,  258;  Orth  v.  Jennings,  8 
Blackf.  420;  Kelly  v.  Mills,  41  Miss.  267;  Norton  v.  Williams,  9  Iowa,  529; 
Greenleaf  v.  Edes,  2  Minn.  264;  First  Nat.  Bank  v.  Hayzlett,  40  Iowa,  659; 
Pixley  v.  Huggins,  15  Cal.  127. 

263 


§    341  MORTGAGORS    AND    MORTGAGEES.  [PART    I- 

frora  the  mortgagee,  is   no  notice  to  the  mortgagor  and 

©     ©  *  ©      © 

his  assigns.  In  order  not  to  be  bound  by  the  acts  of  the 
mortgagee  after  the  assignment,  which  have  the  effect  of 
extinguishing  the  mortgage  —  as,  for  example,  acceptance  of 
payment  from  the  mortgagor  —  actual  notice  of  the  assign- 
ment must  be  brought  to  the  mortgagor  and  subsequent 
purchasers  of  his  equity  of  redemption.1  So,  also,  must 
actual  notice  be  given  to  the  mortgagee  of  the  assignment 

O  ©     ©  © 

of  the  mortgagor's  estate,  in  order  that  the  rights  of  the 

©     ©  © 

assignee  may  be  fully  protected  against  the  unlawful  acts  of 
the  mortgagor.2 

§  341.  Tacking  of  mortgages.  —  In  England,  if  there 
are  three  or  more  mortgages  upon  the  same  property,  and 
the  first  and  third  or  other  subsequent  mortgages  are  held 
by  the  same  person,  with  the  intervening  second  mortgage 
outstanding  in  another,  by  obtaining  possession  under  the 
first  mortgage  the  mortgagee  may  hold  the  mortgaged  prem- 
ises against  the  second  mortgagee,  until  the  third  or  other 
subsequent  mortgage  in  his  possession  has  been  satisfied. 
This  doctrine  is  called  "  the  tacking  of  mortgages,"  and  is 
based  upon  the  theory  that,  since  one  mortgagee  has  no  no- 
tice of  the  other  mortgages,  the  equities  of  successive  junior 
mortgagees  are  equal;  and  the  first  mortgagee,  having  the 
full  legal  title  in  possession,  may  use  his  possession  for  the 
benefit  of  whatever  liens  he  may  have  upon  the  premises  to 
the  exclusion  of  other  subsequent  mortgagees,-  who  would 

1  Jones  v.  Gibbons,  '9  Ves.  410;  Mitchell  v.  Burnham,  44  Me.  302;  James 
v.  Johnson,  6  Johns.  Ch.  417;  Walcott  v.  Sullivan,  1  Edw.  Ch.  399;  Ely  v. 
Seofield,  35  Barb.  330 ;  Belden  v.  Meeker,  47  N.  Y.  307 ;  Bank  v.  Anderson, 
14  Iowa,  544;  Johnson  v.  Carpenter,  7  Minn.  176.  In  some  of  the  States 
notably  California,  Indiana,  Kansas,  Michigan,  Minnesota,  Nebraska,  New- 
York,  Oregon,  Wisconsin,  Maryland,  the  same  rule  is  established  by  statute. 
Jones  on  Mort.,  sect.  473 ;  2  Washb.  on  Real  Prop.  148.    And  see  post,  sect.  815_ 

2  4  Kent's  Com.  174;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  158;  Bell  v.  Flem- 
ing, 12  N.  J.  Eq.  16 ;  Blair  v.  Ward,  10  N.  J.  Eq.  126.     See  post,  sect  815. 

264 


CH.  X.]        MORTGAGORS  AXD  MORTGAGEES.         §  342* 

otherwise  have  taken  subject  only  to  the  first  mortgage.1 
But  in  this  country  the  general  prevalence  of  recording  laws 
has  taken  from  the  doctrine  its  practical  value,  since  the 
record  is  constructive  notice  to  all  subsequent  incumbrancers r 
and  such  notice  destroys  the  equality  of  the  equities  said  to 
exist  between  junior  mortgagees.  It  may  be  said  that  the 
doctrine  does  not  prevail  at  all  in  the  United  States.2 

§  342.  Priority  in  mortgages  for  future   advances. — 

Where  the  first  recorded  mortgage  is  to  secure  future  ad- 
vances,  it  becomes  a  question  of  importance  to  what  extent 
will  such  a  mortgage  have  priority  over  a  subsequently  re- 
corded mortgage  ;  and,  although  there  was  at  one  time  a 
considerable  diversity  of  opinion,  the  general  rule  now  pre- 
vailing seems  to  be  the  following:  If  the  mortgagee  has  en- 
tered  into  a  binding  contract  to  furnish  the  advances  under 
all  circumstances,  and  his  failure  to  do  so  would  expose  him 
to  an  action  on  the  covenant,  even  if  such  refusal  or  failure 
occurred  after  the  execution  of  the  second  mortgage,  then 
his  mortgage  will  take  precedence  to  the  second  mortgage 
for  the  amounts  advanced  both  before  and  after  the  execu- 

1  Young  v.  Young,  L.  R.  3  Eq.  805 ;  Marsh  v.  Lee,  2  Vent.  337  ;  s.  <\,  1  Ch. 
Cas.  162;  Brace  v.  Marlborough,  2  P.  Wms.  491. 

a  Grant  v.  Bissett,  1  Caines's  Cas.  112;  McKinstry  v.  Merwin,  3  Johns.  Ch- 
466;  Burnett  v.  Denniston,  5  Johns.  Ch.  35;  Thompson  v.  Chandler,  1  Me. 
381;  Chandler  v.  Dyer,  37  Vt.  345;  Osborn  v.  Carr,  12  Conn.  195;  Loringv. 
Cooke,  3  Pick.  48 ;  Green  v.  Tanner,  8  Mete.  411 ;  Anderson  v.  Neff,  11  Serg.  & 
R.  208;  Thomas'  App.,  30  Pa.  St.  378;  Brigdenv.  Carhart,  1  Hopk.  Ch.  231; 
Averill  v.  Guthrie,  8  Dana,  82;  Brazee  v.  Lancaster  Bk.,  14  Ohio,  318;  Wing 
v.  McDowell,  Walk.  (Mich.)  175.  But  it  has  been  held  in  a  number  of  the 
courts,  that,  as  between  mortgagor  and  mortgagee,  the  mortgagee  may 
hold  the  mortgage  and  refuse  a  satisfaction,  until  all  subsequent  advances 
made  by  the  mortgagee  shall  have  been  paid.  Orvis  v.  Newell,  17  Conn.  97; 
Chase  v.  McDonald,  7  Har.  &  J.  160;  Lea  v.  Stone,  5  Gill  &  J.  611 ;  Joslyn  v. 
Wyman,  5  Allen,  62 ;  Stone  v.  Lane,  10  Allen,  74;  Siter  v.  McClanachan,  2 
Gratt.  280;  Colquhoun  v.  Atkinson,  6  Munf.550;  Walling  v.  Aiken,  1  McMull. 
Eq.  1 ;  Hughes  v.  Worley,  1  Bibb.  200;  Downing  v.  Palmeteer,  1  B.  Mon.  64; 
Towner  v.  Wells,  8  Ohio,  136;  Coombs  v.  Jordan,  3  Bland,  284. 

265 


§  342        MORTGAGORS  AND  MORTGAGEES.      [PART  I. 

tion  of  the  latter.1  But  if  the  continuance  of  the  advances 
be  voluntary,  and  his  refusal  to  make  them  after  the  second 
mortgage  would  not  constitute  a  breach  of  the  covenant, 
the  first  mortgage  will  have  priority  only  for  such  amounts 
as  have  been  advanced  before  the  first  mortgagee  received 
notice  of  the  second  mortgage.2  It  has  also  been  a  much 
discussed  question  whether  the  registration  of  the  second 
mortgage  is  such  constructive  notice  to  the  first  mortgagee 
as  to  prevent  him  from  claiming  priority  for  advances  made 
after  the  recording,  and  before  the  receipt  of  actual  notice. 
In  Ohio,  Pennsylvania  and  Michigan  it  is  held  that  the  re- 
cording of  the  second  mortgage  is  constructive  notice  to  the 
first  mortgagee  (in  a  mortgage  for  future  advances),  and 
Mr.  Redfield,  the  late  chief  justice  of  the  Supreme  Court 
of  Vermont,  has  expressed  the  opinion  that  such  will  finally 
be  the  prevailing  rule  in  this  country.3  But  this  view  is  cer- 
tainly in  conflict,  not  only  with  the  other  English  and  Amer- 
ican decisions  on  this  particular  question,  but  also  with  the 
general  theory  of  the  effect  of  recording  a  deed.  It  has 
been  explained  that  the  registry  is  notice  only  to  those  who 
subsequently  acquire  interests  in  the  same  property,  and  un- 

1  Ladue  v.  Detroit,  etc.,  R.  R.,  13  Mich.  380;  Griffin  ».  Burnett,  4  Edw.  Ch. 
673;  Crane  v.  Deming,  7  Conn.  387;  Boswell  y.  Goodwin,  31  Conn.  74;  s.  c, 
12  Am.  Law  Reg.  79,  note ;  Rowan  v.  Sharpe,  etc.,  Mfg.  Co.,  29  Conn.  329 ;  Mo- 
roney's  Appeal,  24  Pa.  St.  372;  Lyle  v.  Ducomb,  5  Binn.  585;  Hopkinson  v. 
Rolt,  H.  L.  Cas.  9614;  Nelson  t>.  Iowa,  etc.,  R.  R.,  8  Am.  R.  R.  Rep.  82. 

2  Boswell  v.  Goodwin,  31  Conn.  74 ;  Ladue  v.  Detroit,  etc.,  R.  R,  13  Mich. 
380;  Shaw  v.  Neale,  6  H.  L.  Cas.  597;  Hopkinson  v.  Rolt,  9  H.  L.  Cas.  514; 
Robinson  v.  "Williams,  22  N.  Y.  380;  Brinkerhoff  i>.  Marvin,  5  Johns.  Ch.  320; 
Bell  v.  Fleming,  12  N.  J.  Eq.  1,  16;  Bk.  of  Montgomery  Co.'s  Appeal,  36  Pa. 
St.  172;  Cox  v.  Hoxie,  115  Mass.  120;  Frye  v.  Bk.  of  111.,  11  HI.  367;  contra, 
Wilson  v.  Russell,  19  Md.  494;  "Witczinski  v.  Everman,  51  Miss.  841,  which 
iiuld  that  any  mortgage  for  future  advances  will  be  good  against  subsequent 
purchasers,  as  to  advances  made  after  the  second  conveyance,  whether  the 
mortgagee  is  bound  to  make  them  or  not. 

3  Bk.  of  Montgomery  Co.'s  Appeal,  36  Pa.  St.  170;  Parmentier  i:  Gillespie, 
9  Pa.  St.  86;  12  Am.  Law  Reg.  92,  Judge  Redfield's  note  to  Boswell  v.  Good- 
win, s.c,  31  Conn.  74;  tjpader  v.  Lawler,  17  Ohio,  371 ;  Ladue  v.  Detroit,  etc, 
R.R..  13  Mich.  380. 

266 


CH.  X.]        MORTGAGORS  AND  MORTGAGEES.         §  342 

less  strong  grounds  are  shown  for  making  an  exception  in 
this  case  to  the  general  rule,  we  must  hold,  with  the  majority 
of  the  American  and  English  courts,  that  actual  notice  must 
be  brought  home  to  the  first  mortgagee,  in  order  to  give  to 
the  second  mortgage  priority  over  the  advances  made  after- 
wards under  the  first.1 

1  McDaniels  v.  Colvin,  16  Vt.  300;  Bell  v.  Fleming,  12  N.  J.  Eq.  1 ;  Craig 
v.  Toppin,  2  Sandf.  Ch.  78 ;  Ward  v.  Cooke,  17  N.  J.  Eq.  93 ;  Truescott  v. 
King,  6  N.  Y.  166  ;  Robinson  v.  "Williams,  22  N.  T.  380;  Rowan  v.  Sharpe's 
Rifle  Co.,  29  Conn.  329;  Wilson  v.  Russell,  13  Md.  495;  Collins  ».  Carlile,  13 
111.  254;  Frye  v.  Bk.  of  111.,  11  111.  367  ;  Nelson  v.  Boyce,  7  J.  J.  Marsh.  401 ; 
Jones  on  Mort.,  sect.  372. 

267 


SECTION  III. 

REMEDIES  AND  REMEDIAL  RIGHTS  INCIDENT  TO  MORTGAGES. 

Section  351.  Actions  for  waste. 

352.  Process  to  redeem. 

353.  Accounting  by  the  mortgagee. 

854.  Continued  —  What  are  lawful  debits? 

355.  Continued  —  What  are  lawful  credits? 

356.  Making  rests. 

357.  Balance  due. 

358.  Foreclosure  —  Nature  and  kinds  of. 

359.  Continued  —  Who  should  be  made  parties? 

360.  Parties  to  Foreclosures  —  Continued. 

361.  Effect  of  decree  in  foreclosure  upon  the  land. 

362.  The  effects  of  foreclosure  upon  the  debt. 

363.  Mortgages,  with  power  of  sale. 

364.  Character  of  the  mortgage  in  relation  to  the  power. 

365.  Purchase  by  mortgagee  at  his  own  sale. 

366.  Extinguishment  of  the  power. 

367.  Application  of  purchase-money. 

368.  Deeds  of  trust. 

369.  Contribution  to  redeem  —  General  statement. 

370.  Mortgagor  v.  his  assignees. 

371.  Contribution  between  assignees  of  the  mortgagor. 

372.  Contribution  between  the  surety  and  the  mortgagor. 

373.  Between  heirs,  widows,  and  devisees  of  the  mortgagor. 

374.  Between  the  mortgaged  property  and  the  mortgagor's  personal 

estate. 

375.  Special  agreements  affecting  the  rights  of  contribution  and  ex- 

oneration. 

376.  Marshalling  of  assets  between  successive  mortgagees. 

§  351.  Actions  for  waste.  — If  the  party  in  possession  — 
whether  mortgagor  or  mortgagee,  or  their  respective  as- 
signees —  does  anything  in  respect  to  the  mortgage  prop- 
erty which  constitutes  waste,  and  as  such  essentially  impairs 
the  value  of  the  inheritance,  he  will  be  responsible  in  dam- 
age to  the  other  parties  who  are  interested  in  the  property. 
The  action  is  not  the  technical  legal  action,  but  is  one  in  the 
268 


CH.  X.]  REMEDIES    INCIDENT    TO    MORTGAGES.  §    352 

nature  of  waste,  and  in  the  code  pleading  would  be  simply 
an  action  for  damages.1  But  the  most  effective  remedy  for 
the  prevention  of  waste  by  the  parties  to  a  mortgage  is  a 
bill  in  equity  for  an  injunction,  or  the  appointment  of  a  re- 
ceiver to  take  charge  of  the  mortgage  property.  Any  one 
who  has  an  interest,  either  in  the  mortgaged  premises  or  in 
the  mortgage  debt,  may  avail  himself  of  these  remedies.2 

§  352.  Process  to  redeem.  — In  those  States  where  the 
payment  or  tender  of  payment  after  condition  broken  ex- 
tinguishes the  mortgage,  and  enables  the  mortgagor  to  re- 
cover the  possession  by  an  action  of  ejectment,  no  further 
process  is  needed  to  restore  him  to  the  complete  title  in  the 

1  Stowell  v.  Pike,  2  Greenl.  387 ;  Smith  v.  Goodwin,  Id.  173 ;  Frothing- 
ham  v.  McKusick,  24  Me.  403;  Hagar  v.  Brainard,  44  Vt.  302;  Sanders  v. 
Reed,  12  N.  H.  558;  Burnside  v.  Twitchell,  43  N.  H.  390;  Mayo  v.  Fletcher, 
14  Pick.  525;  Wilmarth  v.  Bancroft,  10  Allen,  348;  Page  v.  Robinson,  10 
Cush.  99;  Waterman  v.  Matteson,  4  R.  I.  539;  Mitchell  w.  Bogan,  11  Rich. 
Eq.  686 ;  Lane  v.  Hitchcock,  14  Johns.  205 ;  Haskin  v.  Woodward,  45  Pa.  St. 
44;  Van  Pett  v.  McGraw,  4  Comst.  110;  Gardner  v.  Heatt,  3  Denio,  232; 
Barnett  v.  Nelson,  54  Iowa,  41 ;  37  Am.  Rep.  183.  And  after  condition 
broken,  in  the  common-law  States,  the  mortgagee  may  have  trover  or  reple- 
vin for  the  timber  cut  by  the  mortgagor,  against  the  purchaser  of  the  mort- 
gagor, as  well  as  against  the  mortgagor  himself.  Langdon  v.  Paul,  22  Vt. 
205 ;  Gore  v.  Jennison,  19  Me.  53 ;  Watermann  v.  Matteson,  4  R.  I.  539 : 
Frothingham  v.  McKusick,  24  Me.  403  ;  Adams  v.  Corriston,  7  Minn.  456 ;  Ken- 
nedy v.  Burgess,  38  Mo.  440;  Kimball  v.  Lewiston,  etc.,  Co.,  55  Me.  494; 
contra,  Peterson  v.  Clark,  14  Johns.  205 ;  Wilson  v.  Malthy,  59  N.  Y.  126 ; 
Cooper  v.  Davis,  15  Conn.  656;  Clark  v.  Reyburn,  1  Kan.  281. 

2  Brady  v.  Waldron,  2  Johns.  148;  Johnson  v.  White,  11  Barb.  194; 
Cooper  v.  Davis,  15  Conn.  556 ;  Salmon  v.  Claggett,  3  Bland  Ch.  126 ;  Cap- 
ner  v.  Farmington  Co.,  2  Green  Ch.  467 ;  Brick  v.  Getsinger,  1  Halst.  Ch.  391 ; 
Ensign  v.  Colburn,  11  Paige,  503;  Scott  v.  Wharton,  2  Hen.  &  M.  26;  Par- 
sons v.  Hughs,  12  Md.  1;  Gray  v.  Baldwin,  8  Blackf.  164;  McCaslin  v.  The 
State,  44  Ind.  151 ;  Nelson  v.  Pinegar,  30  111.  473 ;  Mooney  v.  Brinkley,  17 
Ark.  340 ;  Morrison  v.  Buckner,  Hempst.  442 ;  Adams  v.  Corriston,  7  Minn. 
456;  Bunker  v.  Locke,  15  Wis.  635;  Fairbank  v.  Cudworth,  33  Wis.  368 ; 
Robinson  v.  Russell,  24  Cal.  467;  Hampton  v.  Hodges,  8  Ves.  105;  Robinson  v. 
Litton,  3  Atk.  210;  Goodman  v.  Kine,  8  Beav.  379.  But  the  mortgagee  is 
under  no  obligation  to  enjoin,  or  bring  action  for  waste,  and  a  subsequent 
incumbrancer  or  purchaser  cannot  hold  him  liable  for  failing  thus  to  protect 
the  inheritance,  and  reduce  the  debt.    Knarr  v.  Conaway,  42  Ind.  260. 

269 


§    352  REMEDIES    INCIDENT   TO   MORTGAGES.  [PART    I. 

land.  But  where  payment  or  tender  does  not  have  that  ef- 
fect —  as  is  the  case  under  the  common-law  theory  —  the 
mortgagor  is  obliged  to  resort  to  a  bill  in  equity  to  enforce 
a  redemption  and  cancellation  of  the  mortgage.  This  equit- 
able remedy  may  be  instituted  by  the  mortgagor  or  any  one 
claiming  under  him.  The  bill  must  be  accompanied  with  a 
tender  of  payment  into  court,  and  the  decree  orders  the 
mortgagee  to  cancel  and  deliver  up  the  mortgage  and  the 
instrument  of  indebtedness.1  Where  there  are  several  par- 
ties before  the  court  claiming  the  right  to  redeem,  the  court 
will  grant  the  right  of  redemption  to  them  in  the  order  of 
their  priority,  the  one  who  is  last  in  point  of  priority  being 
required  to  redeem  all  the  preceding  mortgages,  in  order 
that  he  may  acquire  the  first  lien  or  absolute  title.2  All 
persons  who  are  interested  in  the  mortgage,  either  as  privies 
of  the  mortgagor  or  mortgagee,  are  proper  parties  to  an  ac- 
tion for  redemption.  The  mortgagee  and  his  assigns  are 
necessary  parties.  And  where  there  are  several  parcels  of 
land  covered  by  the  mortgage,  and  the  owner  of  the  equity 
of  one  wishes  to  redeem,  the  owners  of  the  other  parcels 
must  be  made  parties.  But  this  rule  does  not  apply  where 
there  are  separate  mortgages  over  each  for  the  same  debt.3 

1  Beekman  v.  Frost,  18  Johns.  544;  Silsbee  v.  Smith,  41  How.  Pr.  418; 
Barton  v.  May,  3  Sandf.  Ch.  450;  Perry  v.  Carr,  41  N.  H.  371;  Edgerton  v. 
McRea,  6  Miss.  183;  Daughdrill  v.  Sweeny,  41  Ala.  310;  Anson  v.  Anson,  20 
Iowa,  55;  Pitman  v.  Thornton,  66  Me.  469;  Gerrish  v.  Black,  122  Mass.  76; 
Halt  v.  Rees,  46  111.  181 ;  Brobst  v.  Brock,  10  Wall.  536. 

2  Moore  v.  Beasum,  44  N.  H.  215;  Brewer  v.  Hyndman,  18  N.  H.  9; 
Arcedechare  v.  Bowes,  3  Meriv.  216;  Raymonds.  Holborn,  23  Wis.  57. 

s  1  Dan.  Ch.  Pr.  306,  307;  Winslow  v.  Clark,  47  N.  Y.  261;  Dias  v. 
Merle,  4  Paige,  259;  Hilton  v.  Lathrop,  46  Ale.  297;  Brown  v.  Johnson,  53 
Me.  246;  Wi<™  v.  Davis,  8  Greenl.  31;  McCabe  o.  Bellows,  1  Allen,  269; 
Barker©.  Wood,  9  Mass.  419;  Elliott©.  Patton,  4  Yerg.  10;  Wolcott  v.  Sul- 
livan, 6  Paige  Ch.  117;  Enos  v.  Sutherland,  11  Mich.  538;  Shaw  v.  Hoad- 
ley,  8  Blackf.  165;  Woodward  v.  Wood,  19  Ala.  213;  Beals  v.  Cobb,  51  Me. 
348;  Doody  v.  Pierre,  9  Allen,  141.  Upon  the  death  of  the  mortgagor, 
either  his  heir  or  the  personal  representatives  may  bringthesuit,  because  both 
are  interested  in  the  liquidation  of  the  mortgage.     Enos  v.  Southerland,  11 

270 


CH.  X.]  REMEDIES    INCIDENT    TO   MORTGAGES.  §    353 

§  353.  Accounting  by  the  mortgagee. — In  the  action 
for  redemption,  in  order  to  determine  the  amount  then  due 
on  the  mortgage  it  is  sometimes  necessaiy  to  have  an  ac- 
counting. An  accounting  may  be  ordered  whenever  the 
mortgage  debt  involves  a  long  and  tedious  account  of  charges 
and  counter-charges,  but  it  is  particularly  necessary  when 
the  mortgagee  has  been  in  possession  of  the  premises,  has. 
received  the  rents  and  profits  of  the  land,  and  expended 
sums  of  money  in  keeping  the  premises  in  repair.  The 
mortgagor,  or  other  person,  praying  for  redemption,  asks 
for  an  accounting  by  the  mortgagee.  An  accounting  is  an 
equitable  remedy  which  may  be  instituted  independently  of, 
or  in  conjunction  with,  another  and  the  principal  suit.  The 
mortgagor  and  his  assigns  may  ask  for  an  accounting  with- 
out filing  a  bill  to  redeem,  or  they  may  request  it  in  con- 
nection with  the  action  for  redemption.  The  case  is 
referred  to  a  master  in  chancery,  if  there  be  one,  or  to  a  spe- 
cial referee,  who  ascertains  and  determines  the  proper  debits 
and  credits  of  the  account  between  the  parties,  and  reports 
to  the  court  the  balance  found  due.1 

Mich.  538;  Guthrie  v.  Sorrell,  6  Ired.  Eq.  13;  Gen.  Stat.  Mass.  (1860),  sects. 
32,  33.  And  at  common  law,  upon  the  death  of  the  mortgagee,  both  the 
heirs  and  personal  representatives  had  to  be  made  parties.  Anon.  2  Freem. 
52 ;  Osbourn  v.  Fallows,  1  Russ.  &  M.  741 ;  Story's  Eq.  PL,  sect.  188 ;  Has- 
kins  v.  Homes,  108  Mass.  379.  But  under  the  lien  theory  of  mortgages,  the 
personal  representatives  of  the  mortgagee  are  the  only  necessary  parties. 
Copeland  v.  Yaakum,  38  Mo.  349.  And  where  a  junior  mortgagee  redeems, 
he  must  make  tbe  mortgagor,  as  well  as  the  prior  mortgagee,  parties  defend- 
ant. Farmer  v.  Curtis,  2  Sim.  466;  Caddick  v.  Cook,  32  Beav.  70;  Rhodes 
v.  Buckland,  16  Beav.  212;  Palk  v.  Clinton,  12  Ves.  48. 

1  Hunt  v.  Maynard,  6  Pick.  439 ;  Gibson  v.  Crehore,  5  Pick.  146 ;  Bailey 
v.  Myrick,  62  Me.  136;  Davis  v.  Lassiter,  20  Ala.  561;  Doody  v.  Pierce,  9 
Allen,  141;  Harper's  Appeal,  64  Pa.  St.  315;  5  Wait's  Prac.  288;  Barnard  v. 
Jennison,  27  Mich.  230;  Adams  v.  Brown,  7  Cush.  220;  Hubbell  v.  Moulson, 
53  N.  Y.  225.  The  mortgagee's  assigns,  as  well  as  the  mortgagee,  are  liable 
to  be  called  to  account,  and  the  mortgagor's  assigns  have  a  right  to  demand 
an  account.  Brayton  v.  Jones,  5  Wis.  117;  Harrison  v.  Wise,  24  Conn.  1; 
Strang  v.  Allen,  44  111.  428;  Ruckman  v.  Astor,  9  Paige  Ch.  517;  Gelston  v. 
Thompson,  29  Md.  595. 

271 


§    355  REMEDIES    INCIDENT    TO   MORTGAGES.  [PART    I. 

§  354.  Continued  —  What  are  lawful  debits?  —  In  the 

first  place  the  mortgagee  will  be  charged  with  whatever  rents 
he  may  have  received,  or  which  he  could  have  received  but  for 
his  negligence  in  the  management  of  the  estate.  This  mat- 
ter  has  been  already  discussed  in  a  previous  section,  and  a 
complete  statement  of  the  mortgagee's  liability  in  this  con- 
nection need  not  here  be  repeated.1  The  mortgagee  is  also 
chargeable  with  all  damage  done  to  the  inheritance  by  him- 
self, or  by  others  with  his  authority  or  permission,  whether 
the  acts  constitute  affirmative  or  negative  waste.  Thus  he 
is  liable  for  damages  resulting  from  the  opening  and  work- 
ing of  a  mine,  as  well  as  from  letting  the  premises  fall  into 
decay.2 

§  355.  Continued.  — What  are  lawful  credits?  —  Since 
the  mortgagee  in  possession  is  under  an  obligation  to  keep 
the  premises  in  repair,  he  is  entitled  to  credit  himself  with 
all  sums  expended  for  that  purpose.  But  he  will  not  be 
allowed  the  expenses  incurred  in  making  costly  improve- 
ments —  such  as  the  erection  of  new  buildings,  or  for  any  re- 
pairs which  are  not  of  permanent  benefit  to  the  inheritance. 
The  true  rule  seems  to  be,  that  he  will  be  allowed  only  such  ex- 
penses as  he  incurred  in  making  repairs,  which  were  neces- 
sary to  keep  the  premises  in  the  same  condition  as  he 
received  them,  and  for  such  improvements  beyond  that 
limit  which  were  necessary  to  the  ordinary  and  reasonable 
enjoyment  of  the  premises.  For  any  other  expenses  of  re- 
pair he  can  be  credited  only  when  he  has  incurred  them  by 
and  with  the  consent  of  the  mortgagor.3     But  it  has  been 

1  See  ante,  sect.  325. 

3  See  ante,  sect.  351. 

s  Russell  v.  Blake,  2  Pick.  505 ;  Reed  v.  Reed,  10  Pick.  398 ;  Crafts  v. 
Crafts,  13  Gray,  303;  Mickles  v.  Dillaye,  17  N.  Y.  80;  Moore  v.  Cable,  1 
Johns.  Ch.  385;  Gordon  v.  Lewis,  2  Sumn.  143;  Clark  v.  Smith,  1  N.  J.  Eq. 
121;  Norton  v.  Cooper,  39  Eng.  Law  &  Eq.  130;  Sparhawk  v.  Wills,  5  Gray, 
423 ;  Daugherty  v.  McColgan,  G  Gill  &  J.  275 ;  Harper's  Appeal,  64  Pa.  St. 
272 


CH.  X.]  REMEDIES    INCIDENT    TO    MORTGAGES.  §    355 

held  in  some  of  the  States  that  where  lasting  and  permanent 
improvements  of  a  truly  beneficial  character  were  made  by 
the  mortgagee  in  possession,  or  by  a  purchaser,  under  the 
mistaken  belief  that  he  had,  by  foreclosure,  acquired  the 
absolute  title,  he  will  be  allowed  the  value  of  them.1  This, 
probably,  is  but  a  deduction  from  the  general  betterment 
laws,  which  have  been  enacted  in  several  of  the  States.2 
Although  the  mortgagee  is  not  obliged  to  purchase  a  supe- 
perior  or  paramount  title  held  by  a  third  person,  or  to  pay 
the  taxes  due  upon  the  estate,  or  to  effect  an  insurance  where 
the  mortgage  requires  the  mortgagor  to  insure,  yet  if  he 
does  any  of  these  acts  and  incurs  expenses  for  the  protec- 
tion of  their  joint  interests  against  such  forfeiture  or  loss, 
he  will  be  permitted  to  charge  them  against  the  mortgagor.3 
The  mortgagee,  however,  cannot  charge  for  his  personal  ser- 
vices in  the  management  of  the  estate ;  but  if  it  is  necessary 
to  employ  others  —  as,  for  example,  a  person  to  collect  the 
rents —  he  will  be  allowed  such  expenses.     And,  in  some  of 

315;  Lowndes  v.  Chisolm,  2  McCord  Ch.  455 ;  Hopkinson  v.  Stephenson,  1 
J.J.  Marsh.  341;  McConnel  v.  Holsbush,  11  111.61;  McCumber  v.  Gilman, 
15  111.  3S1 ;  McCarron  v.  Cassidy,  18  Ark.  34;  Tharpe  v.  Feltz,  6  B.  Mon.  15; 
Hidden  v.  Jordan,  28  Cal.  301;  Neale  v.  Hagthorpe,  3  Bland  Ch.  590; 
Montgomery  v.  Chadwick,  7  Iowa,  114;  Adkins  v.  Lewis,  5  Oreg.  292;  Bal- 
linger  v.  Cboultan,  20  Mo.  80;  Ford  v.  Philpot,  5  Har.  &  J.  312. 

1  Miner  v.  Beekman,  50  N.  Y.  337;  Putnam  v.  Ritchie,  6  Paige  Ch.  390; 
Vanderhaise  v.  Hughes,  2  Beas.  410;  Harper's  Appeal,  64  Pa.  St.  315;  Bar- 
nard v.  Jennison,  27  Mich.  230;  Neale  v.  Hagthorp,  3  Bland,  590;  Gillis  v. 
Martin,  2  Dev.  Eq.  470;  Troost  v.  Davis,  31  Ind.  34;  Roberts  v.  Fleming,  53 
111.  198 ;  McLorley  v.  Larissa,  100  Mass.  270 ;  Green  v.  Wescott,  13  Wis.  606 ; 
Bacon  v.  Cottrell,  13  Minn.  194. 

2  See  post,  sect.  702. 

3  Clark  v.  Smith,  1  N.  J.  Eq.  121;  Riddle  v.  Bowman,  27  N.  H.  236; 
Muller  v.  Whittier,  36  Me.  577;  Hubbard  v.  Shaw,  12  Allen,  122;  Williams 
v.Hilton,  35  Me.  547;  Robinson  v.  Ryan,  25  N.  Y.  320;  Mix  v.  Hotchkiss, 
14  Conn.  32;  Harvie  v.  Banks,  1  Rand.  408;  Slee  v.  Manhattan  Co.,  1  Paige 
Ch.  81 ;  Fowley  v.  Palmer,  6  Gray,  549  Nichols  v.  Baxter,  5  R.  I.  494 ;  Hag- 
thorp v.  Hook,  1  Gill  &  J.  270;  McCumber  v.  Gilman,  15  111.  381  ;  Weath- 
erby  v.  Smith,  30  Iowa,  131 ;  Davis  v.  Bean,  114  Mass.  360;  Harper  v.  Ely, 
70  111.  581;  Rowan  v.  Sharpe  Rifle  Co.,  29  Conn.  282;  Burr  v.  Veeder,  3 
Wend.  412. 

18  273 


§    357  REMEDIES    INCIDENT    TO    MORTGAGES.         [PART   I. 

the  States,  notably  Massachusetts,  he  is  allowed  a  commis- 
sion where  he  collects  them  himself.  But  the  general  rule 
is  that  he'  will  not  be  permitted  to  make  any  charge  for  his 
own  services,  whatever  may  be  their  nature.1 

§  356.  Making  rests.  —  In  applying  the  rents  and  profits 
received  from  the  estate ,  the  mortgagee  may  first  deduct  there- 
from the  expenses  incurred  in  the  management  of  the  mort- 
gaged premises,  and  then  he  must  apply  the  remainder  to 
the  liquidation  of  the  interest  and  principal  of  the  debt  in 
that  order.  If,  in  making  the  account,  it  is  ascertained  that 
in  any  one  period  —  determined  by  the  time  when  the  in- 
terest falls  due  —  the  rents  and  profits  received  are  more 
than  sufficient  to  cover  the  expenses  and  the  accrued  interest, 
the  balance  is  applied  to  the  principal ;  and  the  interest  sub- 
sequently accruing  is  computed  on  the  reduced  principal. 
This  is  called  making  a  rest.  And  rests  will  be  made  under 
such  circumstances  as  often  as  the  interest  falls  due.2 

§  357.  Balance  due.  — If,  when  the  account  is  stated,  it 
is  found  that  there  is  a  balance  still  due  on  the  mortgage  to 
the  mortgagee,  a  decree  for  redemption  will  be  granted  upon 
the  payment  of  that  sum.     And  the  report  of  the  referee  or 

1  And  any  agreement  that  he  shall  be  permitted  to  charge  for  such  ser- 
vices will  not  be  binding  upon  the  mortgagor.  French  v.  Barron,  2  Atk. 
120;  Gilbert  v.  Dyneley,  3  Mann.  &  G.  12;  Eaton  v.  Simonds,  14  Pick.  98; 
Moore  v.  Cable,  1  Johns.  Ch.  385 ;  Elmer  v.  Loper,  25  N.  J.  Eq.  475;  Breck- 
enridge  v.  Brooks,  2  A.  K.  Marsh,  335 ;  Benham  v.  Kowe,  2  Cal.  387 ;  Har- 
per v.  Ely,  70  111.  381.  In  Massachusetts,  Connecticut,  Pennsylvania  and 
Virginia,  the  mortgagee  may  charge  a  reasonable  percentage,  usually  5  per 
cent,  for  the  collection  of  the  rents.  Gerrish  v.  Black,  104  Mass.  400;  Water- 
man v.  Curtis,  26  Conn.  241 ;  Wilson  v.  Wilson,  3  Binn.  557 ;  Granberry  v. 
Granberry,  1  Wash.  (Va.)  246. 

»  Reed  v.  Reed,  10  Pick.  398 ;  Shaffer  v.  Chambers,  6  N.  J.  Eq.  548 ;  Van 
Vronker  v.  Eastman,  7  Mete.  538;  Connecticut  v.  Jackson,  Uohns.  Ch.  13; 
Stone  v.  Seymour,  15  Wend.  16;  Jencks  v.  Alexander,  11  Paige  Ch.  619; 
Gordon  v.  Lewis,  2  Sumn.  147;  Green  v.  Westcott,  13  Wis.  606;  Saunders  v. 
Frost,  6  Pick.  259;  Patch  v.  Wilde,  30  Beav.  100;  Gladding  v.  Warner,  36 
Vt.  54 ;  Mahone  v.  Williams,  39  Ala.  202 ;  Johnson  v.  Miller,  1  Wils.  416. 
274 


CH.  X.]  REMEDIES    INCIDENT    TO    MORTGAGES.  §    358 

master,  when  confirmed  by  the  court,  is  conclusive  as  to  the 
amount  still  owing.  On  the  other  hand,  if  the  report  shows 
that  the  rents  and  profits  received  by  the  mortgagee  exceed 
the  expenses  and  the  amount  of  the  mortgage  combined,  re- 
demption will  be  decreed,  together  with  an  order,  directing 
the  mortgagee  to  pay  over  to  the  mortgagor  whatever  bal- 
ance is  found  due  to  him.1 

§  358.  Foreclosure — Nature  aud  kinds  of . — In  order 
to  bar  the  mortgagor's  equity  of  redemption,  and  acquire 
the  absolute  title  to  the  property,  or  to  satisfy  his  debt  by  a 
sale  of  the  premises,  the  mortgagee  must  bring  an  action  for 
foreclosure.  The  decree  in  such  a  case  bars  completely  the 
right  to  redeem.  There  are  two  principal  kinds  of  fore- 
closure, although  the  details  in  both  are  different  in  different 
States,  and  are  governed  more  or  less  by  local  statutes.  The 
more  ancient  kind  is  what  is  called  strict  foreclosure.  This 
is  an  action  in  which  a  decree  is  rendered  barring  the  mort- 
gagor's equity,  and  vesting  the  absolute  estate  in  the  mort- 
gagee if  the  debt  is  not  paid  within  a  certain  time  after  the 
rendition  of  the  decree.  This  kind  of  foreclosure  is  gener- 
ally resorted  to  in  the  New  England  States,  although  in  some 
of  them  —  particularly  Massachusetts  —  the  form  of  the 
proceeding  has  been  somewhat  changed  from  the  old  com- 
mon-law foreclosure.  But  the  decree  is  essentially  the 
same.2     By  strict  foreclosure,  if  the  mortgagee  is  out  of  pos- 

1  Pitman  v.  Thornton,  66  Me.  469;  Holt  v.  Rees,  46  111.  181 ;  Gerrish  v. 
Black,  122  Mass.  76 ;  Seaver  v.  Durant,  39  Vt.  103 ;  Bell  v.  Mayor  of  N.  Y., 
10  Paige  Ch.  49;  Freytag  v.  Hoeland,  23  N.  J.  Eq.  36;  see  Wood  v.  Felton, 
9  Pick.  171. 

2  In  Massachusetts,  Maine  and  New  Hampshire,  the  action  for  strict  fore- 
closure is  called  a  writ  of  entry,  in  form,  an  action  at  law,  but  in  effect,  an 
equitable  proceeding.  Gen.  Stat.  Mass.,  ch.  140,  sects.  1-11 ;  Me.  Rev.  Stat., 
ch.  90;  Gen.  Stat.  N.  II.,  ch.  112,  213.  But  in  addition  to  this  action,  a 
strict  foreclosure  may  be  effected  in  the  New  England  States,  by  entry  into 
possession  after  condition  broken,  with  a  formal  notice  to  the  mortgagor, 
attested   by  witnesses,  that  the  entry  is  for  the  purpose  of  foreclosure.     Gen- 

275 


§    358  REMEDIES   INCIDENT   TO   MORTGAGES  [PART   I. 

session,  be  may  recover  the  possession  in  an  action  of  eject- 
ment.1 The  other  so-called  equitable  foreclosure  is  effected 
by  a  decree  ordering  the  property  to  be  sold,  and  the  pro- 
ceeds of  sale  applied  to  the  liquidation  of  the  mortgage- 
debt.  If  any  surplus  remains,  it  is  paid  over  to  the  mort- 
gagor and  his  assigns.  This  mode  of  foreclosure  is  juster 
and  fairer  to  all  parties,  and,  very  probably,  everywhere  in 
this  country,  except  the  New  England  States,  foreclosure  is 
always  made  by  a  sale  of  the  premises,  even  though  the 
right  to  a  strict  foreclosure  may  still  exist.  Courts  of  equity 
will  exercise  their  ordinary  power  of  discretion,  and  will 
order  a  sale  of  the  premises  whenever  a  strict  foreclosure 
would  be  manifestly  to  the  detriment  of  the  mortgagor.2  A 
bill  for  foreclosure  may  be  filed  at  any  time  after  the  breach 

erally  this  notice  is  also  required  to  be  published  in  the  newspapers,  and  a 
certificate  of  the  entry  recorded  in  the  general  recording  office.  And  after 
the  lapse  of  a  certain  time,  fixed  by  the  statute,  usually  three  years,  the 
equity  of  redemption  is  foreclosed  without  any  resort  to  the  courts.  2  Jones 
on  Mort.,  sects.  1237-1275. 

1  Kershaw  v.  Thompson,  4  Johns.  Ch.  609;  Schenck  v.  Conover,  13  N.  J. 
L.  220 ;  Montgomery  v.  Middlemiss,  21  Cal.  106 ;  Sutton  v.  Stone,  2  Atk. 
101.  But  the  decree  in  strict  foreclosure  may  include  an  order  to  the  mortga- 
gor to  vacate  the  premises,  and  then  it  will  not  be  necessary  for  the  mortgagee 
to  resort  to  his  legal  remedies.  Kendall  v.  Treadwell,  5  Abb.  Pr.  76 ;  Lan- 
don  v.  Burke,  36  Wis.  378 ;  Buswell  v.  Peterson,  41  Wis.  82. 

1  In  most  of  the  States  there  are  statutes  authorizing  foreclosure  by  sale 
of  the  premises,  but  they  are  only  confirmatory  of  the  power  which  a  court 
of  equity  always  possessed.  Lansing  v.  Goelet,  9  Cow.  352 ;  Mills  v.  Dennis, 
3  Johns.  Ch.  367 ;  William's  Case,  3  Bland  Ch.  193 ;  Packer  v.  Rochester,  etc., 
R.  R.,  17  N.  Y.  287;  De  Haven  v.  Landell,  31  Pa.  St.  124;  Hinds  v.  Allen,  34 
Conn.  193;  McCurdy's  Appeal,  65  Pa.  St.  290;  Shaw  v.  Norfolk  Co.  R.  R.,  5 
Gray,  162 ;  Green  v.  Crockett,  2  Dev.  &  B.  Eq.  393 ;  Belloc  v.  Rogers,  9  Cal. 
123.  Strict  foreclosure  is  recognized  now  in  Alabama,  Florida,  Illinois,  Mary- 
land, Minnesota,  New  York,  but  it  is  only  used  in  special  cases,  and  is  gener- 
ally looked  upon  as  a  severe  remedy.  Hitchcock  v.  U.  S.  Bank  of  Pa.,  7  Ala. 
386;  R.  S.  111.  (1877),  pp.  120,  540;  Dorsey  v.  Dorsey,  30  Md.  522;  Wilder  v. 
Haughey,  21  Minn.  101 ;  Bolles  v.  Duff,  43  N.  Y.  474.  In  the  other  States  it 
does  not  seem  to  be  at  all  applicable.  In  all  the  States  the  foreclosure  of 
mortgage^  is  regulated  by  statute  in  the  different  States,  and  they  differ  widely 
as  to  details.  See  2  Jones  on  Mort.,  sects.  1317-1368,  where  the  distinguish- 
ing features  of  the  statutory  remedies  are  fully  and  accurately  presented. 

276 


CH.  X.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    359 

of  the  condition,  provided  the  action  has  not  been  barred 
by  the  Statute  of  Limitations.  The  condition  is  broken 
when  the  debt  falls  due.  In  other  words,  suit  for  fore- 
closure can  be  brought  as  soon  as  an  action  at  law  will  lie  on 
the  debt.1 

§  359.   Continued. — Who  should  be  made  parties?  — 

Generally  all  persons  should  be  made  parties  to  a  suit  for 
foreclosure  who  are  interested  in  the  mortgage  or  mortgaged 
property.     The  holder  of  the  equity  of  redemption,  subse- 

1  Gladwyn  v.  Hitchraan,  2  Vern.  134;  Harding  v.  Mill  River  Co.,  34  Conn. 
458;  Giles  v.  Baremore,  5  Johns.  Ch.  545;  Hughes  v.  Edwards,  9  Wheat. 
489 ;  Blethen  v.  Dwindal,  35  Me.  556 ;  Inches  v.  Leonard,  12  Mass.  379 ;  Tripe 
v.  Marcy,  39  N.  H.  439;  Gillett  v.  Balcom,  6  Barb.  370;  Williams  v.  Town- 
send,  31  N.  Y.  411 ;  Trayser  v.  Trustees  of  Indiana,  etc.,  University,  39  Ind. 
556 ;  Nevitt  v.  Bacon,  32  Miss.  212 ;  Roberts  v.  Welch,  8  Ired.  Eq.*287 ;  Fet- 
row  v.  Merriwether,  53  111.  275;  Pope  v.  Durant,  26  Iowa,  233.  The  mortgage 
may  be  made  to  fall  due  upon  the  default  in  the  payment  of  an  instalment  of 
interest,  and  the  mortgage  may  then  be  foreclosed  for  the  entire  debt,  although 
the  time  for  payment  has  not  yet  arrived,  unless  it  is  expressly  provided  that 
the  default  in  payment  of  interest  will  not  give  the  right  to  foreclose.  Stan- 
hope v.  Munners,  2  Eden,  197;  West  Branch  Bank  v.  Chester,  11  Pa.  St. 
282;  Richards  v.  Holmes,  18  How.  143;  Seaton  v.  Twyford,  L.  R.  11 
Eq.  591 ;  Burrowes  v.  Malloy,  2  Jones  &  Lat.  521 ;  Sire  v.  Wightman,  25  N. 
J.  Eq.  102;  De  Groot  v.  McCotter,  19  N.  J.  Eq.  531 ;  Terry  v.  Eureka.  College, 
70  111.  236 ;  Harshaw  v.  McKesson,  66  N.  C.  266 ;  Cecil  v.  Dynes,  2  Ind.  266 ; 
Magruder  v.  Eggleston,  41  Miss.  284;  Schooley  v.  Romain,  31  Md.  574;  Jones 
v.  Lawrence,  18  Ga.  277 ;  Hosie  v.  Gray,  71  Pa.  St.  198 ;  Adams  v.  Essex,  1 
Bibb.  149;  Goodman  v.  Cin.  &  C.  C.  R.  R..  2  Disney,  176;  Morgenstern  v. 
Klees,  30  111.  422;  see  Poweshiek  Co.  v.  Dennison,  36  Iowa,  352;  19  Am  Rep. 
521.  But  where  it  is  not  provided  that  the  entire  debt  shall  fall  due,  upon  the 
default  in  interest,  there  may  yet  be  given  right  of  foreclosure  for  the  purpose 
of  enforcing  payment  of  the  interest  due,  by  the  sale  of  so  much  property  as 
is  necessary,  and  a  subsequent  sale  of  the  remaining  property  when  the  rest 
of  the  debt  falls  due.  Bank  of  Ogdensburg  v.  Arnold,  5  Paige,  38 ;  Peyton  v. 
Ayres,  2  Md.  Ch.  64 ;  Caufman  v.  Sayre,  2  B.  Mon.  202 ;  Buford  v.  Smith,  7 
Mo.  489;  Magruder  v.  Eggleston,  41  Miss.  284;  Poweshiek  Co.  v.  Dennison. 
36  Iowa,  244.  The  mortgage  may  also  provide  that  the  default  of  interest 
may  cause  the  entire  debt  to  fall  due,  "at  the  election  of  the  mortgagee." 
Randolph  v.  Middleton,  26  N.  J.  Eq.  543;  English  v.  Carney,  25  Mich.  178; 
Harper  v.  Ely,  56  111.  179;  Princeton,  etc.,  Co.  v.  Munson,  60  111.  :i71 ;  Schoon- 
maker  v.  Taylor,  14  Wis.  313;  Bosse  v.  Gallagher,  7  Wis.  442. 

277 


§    359  REMEDIES    INCIDENT    TO    MORTGAGES.  [PART    I. 

quent  purchasers  and  junior  mortgagees,  must  always  be 
made  parties.1  But  one  who  purchases  the  equity  during 
the  pendency  of  the  suit  takes  the  mortgagor's  interest  sub- 
ject to  the  decree,  and  need  not  be  made  a  party.2  It  has 
also  been  held  in  some  States  that  a  prior  mortgagee  should 
be  made  a  party.3  And  it  may  be  stated  that,  wherever  the 
mortgage  is  to  be  foreclosed  by  a  sale  of  the  premises,  the 
prior  mortgagee  may  be  joined  in  the  suit,  though  he  is  not 
a  necessary  party  ;  it  is  also  advisable  to  do  so,  since  with- 
out him  the  property  can  only  be  sold  subject  to  his  out- 

1  Finley  u.  U.  S.  Bank,  11  Wheat.  304;  Caldwell  v.  Taggart,  4  Pet.  190; 
McCall  v.  Yard,  9  N.  J.  Eq.  358;  Goodrich  v.  Staples,  2  Cush.  258;  Webster 
v.  Vandeventer,  6  Gray,  428;  Williamson  v.  Field.  2  Sandf.  Ch.  533;  Vand*  r- 
kemp  v.  Shelton,  11  Paige  Ch.  28;  Goodman  v.  White,  26  Conn.  317;  Wins- 
low  v.  Claik,  47  N.  Y.  261 ;  Haines  v.  Beach,  3  Johns.  Ch.  459;  Valentine  v. 
Havener,  20  Mo.  133 ;  Bates  v.  Miller,  48  Mo.  409 ;  Colter  v.  Jones,  52  111.  8 1 : 
Ohling  v.  Luitjens,  32  111.  23;  Hunt  v.  Acre,  28  Ala.  580;  White  v.  Watts,  18 
Iowa,  76;  Newcomb  v.  Dewey,  27  Iowa,  388;  McArthur  v.  Franklin,  15  Ohio 
St.  509;  Porter  v.  Clements/3  Ark.  364;  Webb  v.  Maxan,  11  Texas,  678; 
Carpentier  v.  Williamson,  25  Cal.  161 ;  Skinner  v.  Buck,  29  Cal.  257. 

2  Lloyd  v.  Passingham,  16  Ves.  66;  Parkes  v.  White,  11  Ves.  236;  Watt  v. 
Watt,  2  Barb.  Ch.  371 ;  Jackson  v.  Losee,  4  Sandf.  Ch.  381 ;  Ostrom  v.  Mc- 
Cann,  21  How.  Pr.  431;  McPherson  v.  Honsel,  13  N.  J.  Eq.  299;  Loomisw. 
Stuyvesant,  10  Paige  Ch.  490;  Lyon  v.  Sanford,  5  Conn.  548;  Cleveland  r. 
Boerum,  23  N.  Y.  201 ;  Crooker  v.  Crooker,  57  Me.  396  ;  Snowman  v.  Harford. 
lb.,  400;  Haven  v.  Adams,  8  Allen,  367;  Poston  v.  Eubank,  3  J.  J.  Marsh.  43; 
Bennett  v.  Calhoun  Ass'n,  9  Rich.  Eq.  163;  Hull  v.  Lyon,  27  Mo.  570;  Jack- 
son?). Warren,  32111.340;  Dickson  v.  Todd,  43  111.  507;  Hayes  v.  Shuttuck,  21 
Cal.  51;  Montgomery  v.  Middlemiss,  21  Cal.  106;  Abadie  v.  Lobers,  36  Cal. 
390. 

3  Making  a  prior  mortgagee  party  is  equivalent  to  instituting  an  action  for 
redemption.  Hudnit  v.  Nash,  16  N.  J.  Eq.  550 :  Roll  v.  Snmlley,  6  N.  J.  Eq.  464  ; 
Finley  v.  U.  S.  Bk.,  11  Wheat.  306 ;  Wylie  v.  McMakin,  2  Md.  Ch.  413 ;  Standish 
v.  Dow,  21  Iowa,  363 ;  Person  v.  Merrick,  5  Wis.  231 ;  Shiveley  v.  Jones,  6  B. 
Mon.  274;  Persons  v.  Alsip,  2  Ind.  67.  But  by  the  weight  of  authority  prior 
mortgagees  and  grantees  are  not  necessary,  and  hardly  proper,  parties.  Jerome 
v.  Carter,  94  U.  S.  734;  Weed  v.  Beebe,  21  Vt.  409;  Kay  v.  Whittaker,  44 
N.  Y.  505;  Hancock  v.  Hancock,  22  N.  Y.  568;  but  see  Morris  v.  Wheeler,  45 
N.  Y.  708;  Tomer.  Loan  Co.,  34  Md.  12;  Bogey  v.  Shute,  4  Jones  Eq.  174: 
Walker  v.  Jarvis,  16  Wis.  28;  Wright  v.  Bundy,  11  Ind.  398;  Summers  v. 
Bromley,  28  Mich.  125;  Hall  p.  Hall,  11  Texas,  547. 

278 


CH.  X.]  REMEDIES    INCIDENT   TO   MORTGAGES.  §    359 

standing  mortgage.1  Although  in  some  of  the  States  the 
wife  of  the  holder  of  the  equity  is  not  held  to  be  a  necessary 
party,  it  is  best  always  to  make  her  one,  and  in  the  cases 
cited  below  it  has  been  held  to  be  necessary.2  Whether 
judgment-creditors  should  be  made  parties  has  been  differ- 
ently decided  in  different  States.3  Where  the  mortgagor 
has  parted  with  his  entire  interest  in  the  premises  he  is  not 
a  necessary  party,  but  he  may  be  joined,  and  must  be,  if  the 

1  Holcorab  v.  Holcomb,  2  Barb.  20;  Vanderkemp  v.  Shelton,  11  Paige  Ch. 
28;  Howard  v.  Handy,  35  N.  H.  315;  Wood  v.  Oakley,  11  Paige  Ch.  400; 
Weed  v.  Beebe,  21  Vt.  495 ;  Ducker  v.  Belt,  34  Md.  Ch.  13 ;  Hagan  v.  Walker. 
14  How.  37;  Champlin  v.  Foster,  7  B.  Mon.  104;  Clark  v.  Prentice,  3 
Dana,  468;  Troth  v.  Hunt,  8  Blackf.  580;  Mack  v.  Grover,  12  Ind.  254 ;  Bucks 
v.  Taylor,  49  Miss.  552 ;  Brown  v.  Nevitt,  27  Miss.  801 ;  Mims  v.  Mims,  1 
Humph.  425;  Rowan  v.  Mercer,  10  Humph.  359;  Downer  v.  Clement,  11  N. 
H.40. 

2  That  is,  necessary  when  her  dower  right  is  subject  to  the  mortgage.  Mills 
v.  Van  Voorhies,  28  Barb.  125;  s.  c,  20  N.  Y.  412;  Merchants'  Bk.  v.  Thomson. 
55  N.  Y.  7;  Johns  v.  Reardon,  3  Md.  Ch.  57;  Watt  v.  Alvord,  25  Ind.  533; 
Chambers?;.  Nicholson,  30  Ind.  349;  Leonard  v.  Villars,  23  111.  377;  Wright v, 
Langley,  36  111.  381 ;  Mooney  v.  Maas,  22  Iowa,  380 ;  Burnap  v.  Cook,  16  Iowa. 
149;  McArthur  v.  Franklin,  16  Ohio  St.  193;  Byrne  v.  Taylor,  46  Miss.  95; 
Foster  v.  Hickox,  38  Wis.  408;  Wisner  v.  Farnham,  2  Mich.  472;  Tadlock  v, 
Eccles,  20  Texas,  783;  Revalk^  v.  Kracmer,  8  Cal.  66;  Anthony  v.  Nye,  30 
Cal.  401.  But  see  EslanawTLe  Petri,  21~Ala.  504;  Fletcher  v.  Holmes,  32 
Ind.  497;  Thorntons.  Pigg,  24  Mo.  249;  Riddick  v.  Walsh,  15  Mo.  538;  Am- 
phlett  v.  Hibbard,  29  Mich.  298;  Etheridge  v.  Vernoy,  71  N.  C.  184.  But 
where  she  has  not  joined  in  the  execution  of  the  mortgage,  she  cannot  be 
made  a  party,  so  as  to  bar  her  dower  right,  unless  there  is  some  special  defence 
to  her  claim.  Brackett  v.  Baum,  50  N.  Y.  8;  Bell  v.  Mayor  of  N.  Y,  10  Paige 
Ch.  49 ;  Mills  v.  Van  Voorhies,  20  N.  Y.  415 ;  Merchants'  Bk.  v.  Thomson,  65 
N.  Y.  7 ;  Baker  v.  Scott,  «2  111.  86 ;  Heth  v.  Cocke,  1  Rand.  344 ;  Mooney  v. 
Maas,  22  Iowa,  380;  Foster  v.  Hickox,  38  Wis.  408;  Sheldon  v.  Patterson  55 
111.  507. 

3  That  they  must  be,  in  order  to  extinguish  their  equity  of  redemption,  see 
Adams  v.  Paynter,  1  Coll.  530;  Sharpe  v.  Scarborough,  4  Ves.  538;  Brainardw. 
Cooper,  10  N.  Y.  35G ;  Gage  v.  Brewster,  31  N.  Y.  225 ;  Lyon  v.  Sanford,  5, 
Conn.  544;  Proctor  v.  Baker,  15  Ind.  178;  Gaines  v.  Walker,  16  Ind.  361.  So 
also,  a  subsequently  attaching  creditor.  Lyon  v.  Sanford,  5  Conn.  544;  Car- 
ter v.  Champion,  8  Conn.  549;  Bullard  v.  Leach,  27  Vt.  491.  But  in  the  fol- 
lowing cases,  judgment-creditors  are  held  not  to  be  necessary  parties.  Downer 
v.  Pox,  20  Vt.  388 ;  Felder  v.  Murphy,  2  Rich.  Eq.  58 ;  Person  v.  Merrick,  6 
Wis.  231 ;  Mims  v.  Mims,  1  Humph.  425. 

279 


§    360  REMEDIES    INCIDENT    TO    MORTGAGES.  [PART    I. 

mortgagee  wishes  to  obtain  a  personal  judgment  against  him 
in  the  same  suit  for  the  balance  of  the  debt  left  unsatisfied 
by  a  sale  of  the  mortgaged  property.1  Where  the  mortgagor 
is  dead,  his  heirs  and  his  widow  must  be  made  parties,  and 
his  personal  representatives  need  be,  only  when  a  judgment 
against  the  mortgagor's  estate  for  the  balance  is  desired,  ex- 
cept in  Missouri,  where  they  are  by  statute  required  to  be 
parties  in  every  case.2 

§  360.  Parties  to  foreclosure  —  Continued.  —  All  per- 
sons—  such  as  joint  mortgagees,  assignees,  etc.,  whether 
their  interest  be  legal  or  equitable  —  who  are  interested  in 
the  mortgage  or  mortgage-debt,  should  join  in  the  suit  as 
parties  plaintiff.  But  if  any  should  refuse  they  must  be 
made  defendants.3     Where  the  mortgagee  has  assigned  the 

1  Lockwood  v.  Benedict,  3  Edw.  Ch.  472;  Drury  v.  Clark,  16  How.  Pr. 
424;  Soule  v.  Albee,  31  Vt.  142;  Heyer  v.  Pruyn,  7  Paige  Ch.  465;  Swift  v. 
Edson,  5  Conn.  153;  Andrews  v.  Steele,  22  N.  J.  Eq.  478;  Delaplaine  v. 
Lewis,  19  Wis.  476;  Wilkins  v.  Wilkins,  4  Port.  245;  Cord  v.  Hirsch,  17 
Wis.  532;  Stevens  v.  Campbell,  21  Ind.  471;  Shawu.  Hoadley,  8  Blackf.  165; 
Moore  v.  Starks,  1  Ohio  St.  369;  Jackson  v.  Monell,  13  Iowa,  300;  Heyman  w. 
Lowell,  23  Cal.  106 ;  Bellse  v.  Rogers,  9  Cal.  123 ;  Mich.  Ins.  Co.  v.  Brown,  11 
Mich.  265;  Jones  v.  Lapham,  15  Kan.  540.  But  see  Bigelow  v.  Bush,  6  Paige 
Ch.  343 ;  Buchanan  v.  Monroe,  22  Texas,  557.  Nor  are  purchasers  of  the 
equity  of  redemption  necessary  or  proper  parties  after  they  have  assigned  it. 
Soule  v.  Albee,  31  Vt.  142;  Lockwood  v.  Benedict,  8  Edw.  Ch.  472;  Hall  v. 
Yoell,  45  Cal.  584. 

2  Farmers.  Curtis,  2  Sim.  466;  Bradshaw  v.  Outram,  13  Yes.  234;  Wood 
v.  Moorhouse,  1  Lans.  405 ;  Graham  v.  Carter,  2  Hen.  &  M.  6 ;  Worthington 
v.  Lee,  2  Bland  Eq.  678;  Mayo  v.  Tomkies,  6  Munf.  52  ;  Boyce  v.  Bowers,  11 
Rich.  Eq.  41 ;  Averett  v.  Ward,  Busb.  Eq.  192 ;  Erwin  v.  Ferguson,  5  Ala.  158  j 
Hunt  v.  Acre,  28  Ala.  580 ;  Bollinger  v.  Chouteau,  20  Mo.  89 ;  Mclver  v. 
Cherry,  8  Humph.  713 ;  Moore  v.  Stark,  1  Ohio  St.  369 ;  Bissell  v.  Marine  Co., 
55  111.  165;  Stark  v.  Brown,  12  Wis.  572;  Shiveley  v.  Jones,  6  B.  Mon.  274; 
Byrne  v.  Taylor,  46  Miss.  95;  Abbott  v.  Godfroy,  1  Mich.  178;  Slaughter  v. 
Foust,  4  Blackf.  379;  Britton  v.  Hunt,  9  Kan.  228;  Burton  v.  Lies,  21  Cal.  87. 
But  in  Georgia  and  Missouri  the  personal  representatives  are  necessary  par- 
ties. Dixon  v.  Cuyler,  77  Ga.  248;  Magruder  v.  Offut,  Dudley,  227;  Miles  v. 
Smith,  23  Mo.  502  ;  Perkins  v.  Woods,  27  Mo.  547. 

s  Carpenter  v.  O' Dougherty,   58  N.  Y.  681 ;  Noyes  v.  Sawyer,  3  Vt.  100; 
Rankin  v.  Major,  9  Iowa,  297;  Thayer  v.  Campbell,  9  Mo.  280;    Pogue  v. 
280 


CH.  X.]  REMEDIES    INCIDENT    TO    MORTGAGES.  §    360 

mortgage  and  debt  absolutely,  the  assignee  is  the  proper 
party  to  bring  the  suit,  and  the  mortgagee  need  not  join ; 
but  he  is  a  necessary  party,  if  the  assignment  is  only  condi- 
tional.1 But  whether  the  assignee  of  the  debt  can  bring  the 
suit  independently  of  the  mortgagee  or  legal  holder  of  the 
mortgage,  depends  upon  the  construction  given  by  the  courts 
to  the  effect  of  such  an  assignment.  At  common  law  the 
holder  of  the  legal  title  to  the  mortgage  must  institute  the 
suit  as  trustee  for  the  assignee  of  the  debt,  while,  under  the 
lien  theory  in  those  States,  where  the  assignment  of  the  debt 
is  held  to  work  an  equitable  assignment  of  the  mortgage, 
the  assignee  may  maintain  the  suit  in  equity  without  joining; 
the  legal  owner  of  the  mortgage.  In  other  States,  where 
the  assignment  of  the  debt  is  held  to  transfer  the  legal  as- 
well  as  the  equitable  title  to  the  mortgage,  the  assignee  may 
maintain  all  suits,  both  in  law  and  equity.2     It  is  now  the 

Clark,  25  111.  351 ;  Stucker  v.  Stucker,  3  J.  J.  Marsh.  301 ;  Shirkey  v.  Hanna, 
3Blackf.  403;  "Woodward  v.  Wood,  19  Ala.  213;  Goodall  v.  Mopley,  45  Ind. 
355;  Johnson  v.  Brown,  31  N.  H.  405;  Jenkins  v.  Smith,  4  Mete.  (Ky.)  380; 
Bell  v.  Shrock,  2  B.  Mon.  29 ;  Wilson  v.  Heyward,  2  Fla.  27 ;  Myers  v.  Wright, 
33  111.  284 ;  Pettibone  v.  Edwards,  15  Wis.  95 ;  Hartwell  v.  Blocker,  6  Ala. 
581;  Graydon  v.  Church,  7  Mich.  51 ;  Saunders  v.  Frost,  5  Pick.  259;  Wiley 
v.  Pierson,  23  Texas,  486;  Webster  v.  Vandeventer,  6  Gray,  428;  Hopkins  v. 
Ward,  12  B.  Mon.  185  ;  Beals  v.  Cobb,  51  Me.  349 ;  Davis  v.  Hemingway,  29  Vt. 
438;  Somes  v.  Skinner,  16  Mass.  348.  But  in  Rankin  v.  Major,  supra,  and 
Thayer  v.  Campbell,  supra,  it  was  held  that  the  holder  of  one  of  two  notes 
secured  by  the  same  mortgage  may  sue  alone. 

1  Whitney  v.  McKinney,  7  Johns.  Ch.  144;  Miller  v.  Henderson,  10  N.  J. 
Eq.  320 ;  Newman  o.  Chapman,  2  Rand.  93 ;  Kittle  v.  Van  Dyck,  1  Sandf.  Ch. 
76;  Hoyt  v.  Martense,  16  N.  Y.  231 ;  McGuffey  v.  Finley,  20  Ohio,  474;  Gar- 
rett v.  Packett,  15  Ind.  485 ;  Bolles  v.  Carli,  12  Minn.  113 ;  Ward  v.  Sharp,  15 
Vt.  115;  Overall  v.  Ellis,  32  Mo.  322;  Walker  v.  Bk.  of  Mobile,  6  Ala.  452; 
Chambers  v.  Goldwin,  9  Ves.  264 ;  Gage  v.  Stafford,  1  Ves.  sr.  544. 

2  Austin  v.  Burbank,  2  Day,  476;  Stone  v.  Locke,  46  Me.  445;  Moore  v. 
Ware,  38  Me.  496;  Calhoun  v.  Tullass,  35  Ga.  119;  Holdridge  v.  Sweet,  2a 
Ind.  118;  Story  Eq.  PI.,  sects.  201,  209;  Martin  v.  McReynolds,  6  Mich.  70; 
see  ante,  sects.  329,  330.  And  in  the  Code  States  it  is  expressly  provided  that 
all  actions  should  be  prosecuted  in  the  name  of  the  real  party  in  interest.  Un- 
der this  provision,  whether  the  assignee  be  considered  a  legal  or  only  an  equit- 
able owner  of  the  mortgage,  in  either  case  he  is  the  proper  party  to  institute 
the  suit  for  foreclosure.     2  Jonei  on  Mort.,  sect.  1370. 

281 


§    361  REMEDIES    INCIDENT    TO    MORTGAGES.  [PART    I. 

general  rule  in  this  country,  that  upon  the  death  of  the  mort- 
gagee the  mortgage  descends  with  the  debt  to  the  personal 
representatives,  and  they  must,  consequently,  be  the  plain- 
tiffs in  a  suit  for  foreclosure.1  If  the  mortgage  be  given  to 
two  jointly  to  secure  a  joint  debt,  the  survivor  is  the  proper 
party  plaintiff,  and  the  deceased  mortgagee's  representatives 
are  not  necessary  parties.  But  if  the  joint  mortgage  is 
given  for  two  separate  debts,  the  rule  is  different ;  both  the 
survivor  and  the  representatives  of  the  deceased  must  join 
in  the  suit,  and  either  may  institute  the  proceedings.'2 

§  361.  Effect  of  decree  in  foreclosure  upon  the  land. — 

A  decree  in  foreclosure  bars  the  interests  in  the  land  of  the 
mortgagor,  and  all  claiming  under  him  who  have  been  made 

DO'  O 

parties  to  the  suit.  It  will  have  no  effect  upon  the  interest 
of  any  one  who  is  not  a  party,  and  as  to  him  the  equity  of 
redemption  continues  to  exist.3     In  strict  foreclosure,  the 

1  Kinna  v.  Smith,  3  N.  J.  Eq.  14 ;  Roath  v.  Smith,  5  Conn,  133 ;  Smith  v. 
Dyer,  16  Mass.  18;  Dewey  v.  VanDusen,  4  Pick.  19;  Maryland  Code  (1860), 
94;  Maine  Rev.  Stat.  (1857),  ch.  90,  [sect.  10;  Gen.  Stat.  Vt.  (1S70),  S93. 
Worthington  v.  Lee,  2  Bland,  678;  Mo.  Rev.  Stat.  (1855),  ch.  113,  sect.  4; 
Riley  v.  McCord,  24  Mo.  265 ;  Perkins  v.  Woods,  27  Mo.  547 ;  Ratliff  v.  Davis, 
38  Miss.  107;  Buck  v.  Fischer,  2  Col.  182;  Grattan  v.  Wiggins,  23  Cal.  16  ; 
Comp.  Laws  Mich.  (1871),  1393;  Rev.  Stat.  Wis.  (1871),  1223;  Rev.  Stat. 
Ohio,  ch.  43,  sect.  66.  Contra,  Etheridge  v.  Vernoy,  71  N.  C.  184;  Mclver  v. 
Cherry,  8  Humph.  713.  But  if  the  mortgagee's  heir  is  in  possession  he  must 
be  made  a  party.  Osborne  v.  Tunis,  25  N.  J.  L.  633 ;  Huggins  v.  Hall,  10  Ala. 
283. 

2  Blade  v.  Sanborn,  8  Gray,  184 ;  Williams  v.  Hilton,  35  Me.  547 ;  Martin 
v.  McReynolds,  6  Mich.  70;  Lannay  v.  Wilson,  30  Md.  536;  Erwin  v.  Fergu- 
son, 5  Ala.  158;  Milroy  v.  Stockwell,  1  Cart.  (Ind.)  35;  Minor  v.  Hill,  58  Ind. 
176;  26  Am.  Rep.  71.  Contra,  if  the  debt  is  several  or  there  are  conflicting 
claims.  Freeman  v.  Scofield,  16  N.  J.  Eq.  28;  Vickers  v.  Cowell,  1  Beav.  529; 
Mitchell  v.  Burnham,  44  Me.  305;  Burnett  v.  Pratt,  22  Pick.  556. 

3  Packer  v.  Rochester,  etc.,  R.  R.  17  N.  Y.  287;  Kershaw  v.  Thompson, 
4  Johns.  Ch.  609;  DeHaven  v.  Landell,  31  Pa.  St.  124;  Hindo  v.  Allen,  34 
Conn.  193;  Ritger  v.  Parker,  8  Cush.  149;  Kraemer  v.  Rebman,  9  Iowa,  114; 
Tallman  v.  Ely,  6  Wis.  244;  Burton  v.  Lies,  21  Cal.  91 ;  Montgomery  v.  Tutt, 
11  Cal.  192;  Hodson  v.  Treat,  7  Wi?.  263.  In  equitable  foreclosure  by  sale, 
gome  of  the  statutes  require  that  a  certain  time  be  given  to  trie  mortgagor 

282 


CH.  X.]  REMEDIES    INCIDENT    TO    MORTGAGES.  §    361 

decree  makes  the  estate  absolute  in  the  mortgagee.  His 
title,  whatever  it  is  held  to  be  before  foreclosure,  becomes 
afterwards  a  legal  estate  in  lands  and  descends  to  the  heirs, 
instead  of  the  personal  representatives.1  But,  in  some  of 
the  States,  if  the  mortgagee  dies  before  a  suit  for  strict  fore- 

7  or? 

closure  has  been  instituted,  and  it  is  brought  by  the  personal 
representatives,  the  estate,  for  the  purpose  of  distribution, 
partakes  of  the  character  of  personalty,  and  the  title  vests 
in  those  who  became,  by  the  death  of  the  mortgagee,  enti- 
tled to  the  mortgage-debt.2  The  decree  in  a  foreclosure 
suit  is  binding  upon  infant  holders  of  the  equity  to  the  same 
extent  as  adults,  except  that  if  the  foreclosure  is  irregular 

after  the  sale  to  redeem  the  estate,  and  a  court  of  equity  in  the  exercise  of  its 
discretion  may,  in  the  absence  of  a  statute,  provide  for  such  a  period  of  re- 
demption before  sale.  Perine  v.  Dunn,  4  Johns.  Ch.  140 ;  Durrett  v.  Whiting, 
7  B.Mon.  547;  Richardson  v.  Parrott,  7  B.  Mon.  379;  Smith  v.  Hoyt,  14  Wis. 
252 ;  Stockton  v.  Dundee  Manfg.  Co.,  22  N.  J.  Eq.  56 ;  Harkins  v.  Forsyth, 
11  Leigh,  294.  In  Alabama,  California,  Oregon,  Michigan,  Minnesota,  Wis- 
consin, Tennessee,  Iowa,  Illinois,  there  are  statutes  regulating  the  right  of  re- 
demption. 2  Washb.  on  Real  Prop.  261-209,  note.  And  where  there  is  a  time 
for  redemption  after  the  sale,  the  decree  must  not  direct  a  delivery  of  the 
deed  until  this  period  for  redemption  has  expired.  But  a  certificate  is  gener- 
ally given  to  the  purchaser.  Boester  v.  Byrne,  72  111.  466 ;  Rhinehart  v.  Stev- 
enson, 23  111.  524;  Jones  v.  Gilman,  14  Wis.  450;  Walker  v.  Jarvis,  16  Wis. 
28;  Harlan  v.  Smith,  6  Cal.  173.  Until  delivery  of  the  deed,  the  mortgagor 
is  entitled  to  the  rents  and  profits  of  the  land.  Clason  v.  Corley,  5  Sandf.  Ch. 
447 ;  Whalin  v.  White,  25  N.  Y.  464 ;  Whitney  v.  Allen,  21  Cal.  233.  But 
when  the  deed  is  delivered,  it  operates  nunc  pro  tunc  from  the  date  of  the  sale, 
and  bars  any  intervening  attaching  rights.  And  although  the  decree  be  erron- 
eous for  some  irregularity,  it  cannot  be  attacked  collaterally,  and  the  title  of 
a  bona  fide  purchaser,  during  pendency  of  the  suit,  cannot  thereby  be 
avoided,  notwithstanding  the  decree  has  subsequently  been  reversed.  Graham 
v.  Bleakie,  2  Daly,  55;  Horner  v.  Zimmerman,  45  111.  14;  Burford  v.  Rosen- 
feld,  37  Texas,  42 ;  Torroms  v.  Hicks,  32  Mich.  307 ;  Ogden  v.  Walters,  12  Kan. 
282 ;  Markel  v.  Evans,  47  Ind.  326 ;  Miller  v.  Sharp,  49  Cal.  233.  But  see 
Brindernagle  v.  German  Ref.  Church,  1  Barb.  Ch.  15. 

1  Brainard  v.  Cooper,  10  N.  Y.  359;  Goodman  v.  White,  26  Conn.  322; 
Bradley  v.  Chester  Val.  R.  R.,  36  Pa.  St.  150;  Kendall  v.  Treadwell,  14  How. 
Pr.  165;  Farrell  v.  Parlier,  50  111.  274;  Osborne  v.  Tunis,  25  N.  J.  L.  633; 
Swift  v.  Edson,  5  Conn.  531. 

2  Mass.  Gen.  Stat.,  ch.  96,  sects.  10,  1  B,  14;  Fifield  v.  Sperry,  20  N.  H. 
338. 

283 


§    3<U  REMEDIES    INCIDENT   TO    MORTGAGES.  [PART    I. 

on  account  of  some  defect  in  the  proceeding,  he  may  take 
advantage  of  such  error  within  a  reasonable  time  after  ar- 
riving  at  his  majority.  And  this  is  the  rule,  whether  the 
foreclosure  is  in  equity  or  at  law  ;  but  for  the  protection  of 
his  interests,  it  is  generally  required  that  the  infant  be  rep- 
resented in  the  suit  by  a  guardian  ad  litem.1  So  also  is  the 
decree  binding  upon  married  women,  if  their  husbands  are 
joined  with  them  as  parties  to  the  suit.  And  the  failure  of 
the  husband  to  defend  will  not  constitute  a  ground  for  set- 
ting aside  the  decree ;  at  least,  where  the  foreclosure  is  by  a 
sale  of  the  premises.2  But  the  decree  only  transfers  what- 
ever interest  is  claimed  by  or  through  the  mortgagor.  It 
vests  that  interest  in  the  mortgagee  or  purchaser,  but  cannot 
bar  the  interests  held  by  persons  who  are  not  privies  to  the 
mortgagor.  The  decree,  therefore,  does  not  affect  any  par- 
amount title  which  is  held  or  claimed  by  such  persons,  even 
though  they  have  been  made  parties  to  the  suit.3  This  is 
the  case  in  all  technical  suits  for  foreclosure  ;  but  where,  as 
in  Maine  and  Massachusetts,  the  suit  for  foreclosure  is  in 

1  If  it  be  a  strict  foreclosure,  the  infant  would  be  bound  by  the  decree,  if 
he  does  not  show  some  defect  in  the  foreclosure  proceeding  within  a  reasonable 
time  after  his  arrival  at  majority.  2  Cruise  Dig.  199;  Mills  v.  Dennis,  3 
Johns.  Ch.  367.  But  the  infant  is  bound  by  a  sale  under  the  decree,  if  he 
has  been  properly  made  a  party  to  the  action  notwithstanding  the  irregu- 
larity.   Mills  v.  Dennis,  supra;  2  Washb.  on  Real  Prop.  259. 

2  Mallack  v.  Galton,  3  P.  Wms.  352 ;  Mooney  r.  Maas,  22  Iowa,  380;  "Wolf 
v.  Banning,  3  Minn.  202;  Mavrick  v.  Grier,  3  Nev.  52.  But  in  the  States 
where  married  women  hold  their  property  independent  of  their  husbands,  it 
seems  unnecessary  to  make  the  husband  a  party.  Somerset,  etc.,  Ass'n  v. 
Camman,  11  N.  J.  Eq.  382;  Thornton  v.  Pigg,  24  Mo.  249.  And  the  same 
rule  now  prevails  in  Massachusetts  for  a  different  reason.  Davis  v.  Wetherell, 
13  Allen,  62;  Newhall  v.  Sav.  Bk.  101  Mass.  430. 

s  Concord,  etc.,  Ins.  Co.  u.  Woodbury,  45  Me.  447:  Broome  v.  Beers,  (> 
Conn.  198;  Corning  v.  Smith,  6  N.  Y.  82  ;  Lewis  v.  Smith,  9  N.  Y.514;  Eagle 
F.  Ins.  Co.  v.  Lent,  6  Paige  Ch.  63") ;  Mooney  r.  Maas,  22  Iowa,  22; 
Strobe  v.  Downer,  13  Wis.  10;  Pelton  v.  Farmin,  18  Wis.  227;  Palmer 
v.  Yager,  20  Wis.  103;  Banning  v.  Bradford,  21  Minn.  308;  18  Am.  Rep.  398; 
Grattan  v.  Wiggins,  23  Cal.  32;  Holcomb  v.  Holcomb,  2  Barb.  20;  Brundage 
v.  Missionary  Society,  60  Barb.  205. 

284 


€H.  X.]  REMEDIES    INCIDENT   TO   MORTGAGES.  §    362 

the  nature  of  an  action  at  law  for  the  recovery  of  posses- 
sion, if  the  person  in  possession  holds  under  a  superior  title, 
it  would  be  necessary,  or,  at  least  proper,  to  assert  such 
title.  But  this  is  really  not  an  exception  to  the  rule  above 
cited,  since  wherever  the  mortgagee  may  maintain  the  ac- 
tion of  ejectment  the  question  of  a  paramount  title  might 
be  raised  by  the  party  in  possession,  if  he  is  not  the  mort- 
gagor.1 

§  362.   The  effect  of  foreclosure  upon  the  debt. — If 

the  suit  be  for  strict  foreclosure,  all  actions  on  the  surplus 
of  the  debt  remaining  unsatisfied  are  barred  as  long  as  the 
foreclosure  is  upheld;  but  if  the  mortgagee  —  in  the  case 
that  the  value  of  the  property  is  not  sufficient  to  satisfy  the 
entire  debt  —  wishes  to  pursue  his  remedy  for  the  unsatisfied 
balance,  it  will  reopen  the  foreclosure,  and  the  property 
will  or  may  be  sold  under  judicial  decree,  in  order  to  ascer- 
tain its  actual  value,  and  the  amount  of  the  judgment  to  be 
entered  up  against  the  debtor.2  Where  the  decree  directs 
a  sale  of  the  premises,  the  proceeds  of  sale  are  applied  to 
the  liquidation  of  the  debt,  and  if  they  are  not  sufficient  to 
pay  the  whole  debt,  the  mortgagee  has  his  remedies  for  the 
balance,  which  are  the  ordinary  actions  at  law  for  the  re- 
covery of  a  debt.  It  is  usual,  however,  for  the  court  of 
equity,  in  rendering  a  decree  in  foreclosure  for  the  sale  of 
the  mortgaged  premises,  to  give  judgment  for  the  unpaid 
surplus  against  the  mortgagor  and  others  who  may  be  jointly 

1  Hunt  v.  Hunt,  17  Pick.  118;  Keith  v.  Swan,  11  Mass.  216;  Johnsons. 
Phillips,  13  Gray,  198;  Churchill  v.  Loring,  19  Pick.  465;  Wheelwright  v. 
Freeman,  12  Mete.  154;   Whittier  v.  Dow,  14  Me.  298. 

2  Lovell  v.  Leland,  3  Vt.  581 ;  Oaborne  v.  Tunis,  25  N.  J.  L.  633 ;  Spencer 
v.  Harford,  4  Wend.  381 ;  Morgan  v.  Plumb,  9  Wend.  287  ;  Andrews  v.  Scot- 
ton,  2  Bland,  666 ;  Paris  v.  Hulett,  26  Vt.  308 ;  Edgerton  v.  Young,  43  111. 
470;  Bean  v.  Whitcomb,  13  Wis.  431 ;  Bassettw.  Mason,  18  Conn.  136;  Por- 
ter v.  Pillsbury,  86  Me.  278;  Patten  jj.  Pearsen,  57  Me.  434;  Hunt  v.  Stiles, 
10  N.  H.  466;  Smith  v.  Packard,  19  N.  H.  575;  Amory  v.  Fairbanks,  3  Mas3. 
563  ;  Leland  v.  Loring,  10  Mete.  122 ;  Lansing  v.  Goelet,  9  Cow.  346. 

285 


§    362  REMEDIES    INCIDENT   TO   MORTGAGES.  [PART   I. 

liable  with  him.1  The  remedies  of  the  mortgage  are  two- 
fold :  first,  against  the  property  mortgaged,  and  secondly, 
on  the  personal  liability  of  the  mortgagor.  These  remedies 
are  independent  of  each  other,  and,  although  there  can  be 
but  one  payment  of  the  debt,  the  prosecution  of  one  of 
these  remedies  does  not  bar  the  right  to  pursue  the  other, 
and  they  may  be  employed  simultaneously  in  separate  pro- 
ceedings.2 But  in  some  of  the  States : — notably  New  York  — 
judgment  will  not  be  rendered  in  an  action  at  law  on  the 
debt,  while  a  suit  for  foreclosure  is  pending,  without  leave 
of  the  court,  in  which  such  suit  is  filed.3  This  rule  of  prac- 
tice, no  doubt,  rests  upon  the  ground  that  the  entry  of  judg- 
ment in  the  proceeding  at  law  would  be  useless,  since  in  the 
foreclosure  suit  judgment  will  be  given  for  any  balance  re- 
maining unsatisfied. 

1  Dunkley  v.  Van  Buren,  3  Johns.  Ch.  330 ;  Deare  v.  Carr,  3  N.  J.  Eq. 
513;  Pierce  v.  Potter,  7  Watts,  475;  Mott  v.  Clark,  9  Pa.  St.  399;  Andrews  v. 
Scotton,  2  Bland,  666 ;  Hale  v.  Rider,  5  Cush.  231 ;  Jones  v.  Conde,  6  Johns. 
Ch.  77;  Payne  v.  Harrell,  40  Miss.  498;  Stark  v.  Mercer,  3  How.  (Miss.)  377; 
Marston  v.  Marston,  45  Me.  412  ;  Gage  v.  Brewster,  31  N.  T.  220;  Johnson  v. 
Harmon,  19  Iowa,  58;  Drayton  v.  Marshall,  Rice  Eq.  386;  Rollins  v.  Forbes, 
10  Cal.  299;  Lee  v.  Kingsburj-,  13  Texas,  69.  There  are  statutory  provisions, 
for  rendering  a  judgment  for  any  unsatisfied  balance  in  the  foreclosure  suit, 
in  Arkansas,  California,  Indiana,  Michigan,  Minnesota,  New  York,  Missouri, 
Texas  and  Iowa.     See  2  Washb.  on  Real  Prop.  261-269,  note. 

2  Booth  v.  Booth,  2  Atk.  343 ;  Hale  v.  Rider,  5  Cush.  231 ;  Jones  v.  Conde, 
6  Johns.  Ch.  77 ;  Burnell  v.  Martin,  2  Dougl.  417 ;  Att'y-Gen.  v.  Winstanley, 
5  Bligh,  130 ;  Wiswell  v.  Baiter,  20  Wis.  680 ;  Tappan  v.  Evans,  11  N.  H.  311 ; 
Hughes  v.  Edwards,  9  Wheat.  487 ;  M'Call  v.  Lenox,  9  Serg.  &  R.  302 ;  Gilman 
v.  111.  &  Miss.  Tel.  Co.,  91  U.  S.  603 ;  Thornton  v.  Pigg,  24  Mo.  249;  Very  v. 
Watkins,  18  Ark.  546;  O'Leary  v.  Snediker,  16  Ind.  404;  Riblett  v.  Davis  24 
Ohio  St.  114;  Slaughter  v.  Foust,  4  Blackf.  379;  Payne  ».  Hanell,  40  Miss. 
498;  Delahay  v.  Clement,  4  111.  201;  Longworth  v.  Flagg,  10  Ohio,  300; 
Downing  v.  Palmeteer,  1  B.  Mon.  64;  Christy  v.  Dyer,  14  Iowa,  443. 

3  Williamson  v.  Champlin,  8  Paige  Ch.  70;  Snydam  v.  Bartle,  9  Paige  Ch. 
294;  3  Rev.  Stat.  N.  Y.  (1875)  198.  In  Michigan,  Iowa  and  Indiana  the  same 
statute  rules  prevail.  Mich.  Comp.  Laws  (1871),  1549;  Code  of  Iowa  (1873), 
sect.  3320;  2  lnd.  Rev.  Stat.  (1876)  259.  In  Minnesota  no  suit  at  law  on  the 
debt  may  bo  instituted  until  the  foreclosure  suit  is  ended.  Johnson  v.  Lewis, 
13  Minn.  364. 

286 


CH.  X.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    363 

§  363.  Mortgages  with  power  of  sale. — In  order  to 
avoid  the  burdensome  and  expensive  proceedings  for  fore- 
closure, the  idea  was  conceived  of  giving  to  the  mortgagee 
the  power  to  sell  the  mortgaged  premises  upon  the  breach 
of  the  condition,  and  apply  the  proceeds  of  sale  to  the  liqui- 
dation of  the  mortgage-debt.  It  was  at  first  doubted 
whether  such  a  power  was  valid,  when  granted  either  in  the 
mortgage  or  in  a  separate  instrument.  It  was  considered 
as  a  contemporaneous  agreement,  which,  in  its  exercise, 
curtailed  the  mortgagee's  right  to  redeem,  and,  therefore, 
was  void.  But  the  power  of  sale  is  now  generally  held  to 
be  good,  since  it  does  not  abridge  or  take  away  the  ordinary 
remedies  for  foreclosure,  and  is  not  in  theory  a  means  of 
foreclosing  the  mortgagor's  equity  of  redemption.1  It  is  a 
power  coupled  with  an  interest,  and  is,  therefore,  irrevoca- 
ble by  the  mortgagor.  It  operates  as  the  appointment  of 
a  use,  which,  under  the  Statute  of  Uses,  becomes  executed 
into  a  legal  estate  in  the  purchaser,  and  has  all  the  charac- 
teristics that  are  met  with  in  ordinary  powers  of  appoint- 
ment under  that  statute.2  It  is  not  determined  by  the  death 
of  either  party,  as  is  the  case  with  common-law  powers  of 

1  Wilson  v.  Troup,  7  Johns.  Ch.  25;  Smith  v.  Provin,  4  Allen,  518;  Kins- 
ley v.  Ames,  2  Mete.  29;  Calloway  v.  People's  Bk.,  54  Ga.  441 ;  Longworthv. 
Butler,  3  Gilm.  32 ;  Bloom  v.  Van  Rensselaer,  15  111.  503 ;  Fanning  v.  Kerr,  7 
Iowa,  462 ;  Wing  v.  Cooper,  37  Vt.  184 ;  Sims  v.  Hundley,  3  Miss.  896 ;  Mann 
v.  Best,  62  Mo.  491 ;  Clark  v.  Condit,  18  N.  J.  Eq.  358 ;  Hyman  v.  Deveraux, 
63  N.  C.  624;  Bradley  v.  Chester  Valley  R.  R.,  36  Pa.  St.  141 ;  Walthall's 
Executors  v.  Rives,  34  Ala.  91;  Mitchell  v.  Bogan,  11  Rich.  L.  686;  Crowning 
v.  Cox,  1  Rand.  306 ;  Morrison  v.  Bean,  15  Texas,  267 ;  Turner  v.  Johnson,  10 
Ohio,  204. 

2  Wilson  v.  Troup,  2  Cow.  236.  The  difficulty  of  the  courts  at  first,  in  de- 
termining the  validity  of  a  sale  under  the  power,  is,  no  doubt,  traceable  to  a 
failure  to  apply  to  that  case  the  doctrine  of  powers  of  appointment  under  the 
Statute  of  Uses.  The  ordinary  mortgage  is,  in  form  and  effect,  a  deed  of 
bargain  and  sale,  and  the  grant  of  a  power  of  sale  therein  may  be  construed  as 
the  limitation  of  a  use.  See  post,  Chapter  XV.,  on  Powers.  But  in  most  of 
the  States,  where  mortgages  with  power  of  sale  are  in  common  use,  they  are 
expressly  authorized  by  statute,  and  there  is  no  need  of  this  construction  in 
order  to  establish  their  validity. 

287 


§    364  REMEDIES    INCIDENT    TO    MORTGAGES.  [PART    I. 

attorney  ;  it  descends  to  the  mortgagee's  heirs  at  his  death,1 
and  passes  to  the  assignee  of  the  mortgage,  except  where 
only  a  part  of  the  mortgage-debt  is  assigned.  The  power 
is  indivisible,  and,  therefore,  in  a  partial  assignment,  re- 
mains in  the  mortgagee,  who  must  exercise  it  for  the  benefit 

CO  7 

of  both  parties.2  The  power  of  sale  need  not  be  limited  to 
the  estate  of  the  mortgagee.  While  the  mortgage  may  only 
cover  a  life  estate,  the  power  might  authorize  a  sale  of  the 
fee.3 

§  364.  Character  of  the  mortgagee  in  relation  to  the 
power. — As  donee  of  the  power,  the  mortgagee  assumes 
the  character  of  trustee  for  himself  and  the  mortgagor,  and 
all  other  parties  having  interests  in  the  mortgaged  premises. 
In  this  capacity  he  is  under  the  ordinary  obligations  of  a 
trustee,  and  bound  in  his  actions  by  the  same  rules  of  duty. 
In  the  execution  of  the  power  he   must  exercise  the  most 

1  When  it  is  stated  in  the  text  that  the  power  of  sale  passes  to  the  heirs  of 
the  mortgagee,  reference  is  only  had  to  those  States  where  the  mortgage  itself 
descends  to  the  heir.  But  in  most  of  the  States  the  power  of  sale  descends  with 
the  mortgage  to  the  personal  representatives,  and  may  be  exercised  by  them, 
although  the  power  is  expressly  limited  to  the  "heirs  and  assigns."  Dema- 
rest  v.  Wynkoop,  3  Johns.  Ch.  125:  Johnson  v.  Turner,  7  Ohio,  568;  Berry  v. 
Skinner,  30  Md.  573;  Harnickle  v.  "Wells,  50  Ala.  198;  Collins  v.  Hopkins,  7 
Iowa,  463.  In  Missouri  and  Illinois,  and  perhaps  in  other  States,  upon  the 
death  of  the  mortgagee  the  sheriff  may  be  directed  to  execute  the  power,  or  a 
new  trustee  can  be  appointed  upon  the  application  of  any  one  interested 
therein. 

2  Doolittle  v.  Lewis,  7  Johns.  Ch.  45  ;  Wilson  v.  Traup,  2  Cow.  236 ;  Jencks 
v.  Alexander,  11  Paige  Ch.  619 ;  Berger  v.  Bennett,  1  Caines's  Cas.  1 ;  Slee  v. 
Manhattan  Co.,  1  Paige  Ch.  48;  Harnickell  v.  Orndoff,  35  Md.  341 ;  Pease  v. 
Pilot  Knob,  etc.,  Co.,  49  Mo.  124 ;  Pickett  v.  Jones,  63  Mo.  195 ;  Niles  v.  Rans- 
dorf,  1  Mich.  338 ;  Strother  v.  Law,  54  111.  413  ;  Bush  v.  Sherman,  80  111.  160. 
And  this  is  also  true  where  the  assignment  of  the  debt  works  an  assignment  of 
the  mortgage.  Such  an  assignee  may  exercise  the  power  in  those  States  where 
sucb  a  transaction  is  looked  upon  as  a  legal  assignment.  See  cases  supra.  And 
the  assignee  may  exercise  the  power,  although  the  assignment  has  not  been 
recorded.    Montague  v.  Dawes,  12  Allen,  397 ;  s.  c,  14  Allen,  373. 

3  Sedgwick  t>.  Laflin,  10  Allen,  430;  Butler  v.  Ladue,  12  Mich.  173;  Tor- 
rey  v.  Cook,  116  Mass.  165. 

288 


CH.  X.]  REMEDIES    INCIDENT    TO    MORTGAGES.  §    364 

scrupulous  care  to  render  the  sale  of  the  premises  as  bene- 
ficial as  possible  to  all  parties  concerned.  In  most  of  the 
States  where  mortgages  with  power  of  sale  are  in  common 
use,  the  execution  of  the  power  is  regulated  by  local  stat- 
utes. But  in  the  absence  of  statutory  regulations,  sales 
under  the  power  are  governed  by  the  same  rules  as  apply 
to  the  sale  of  other  trust  property.1  A  failure  to  observe 
the  statutory  requirements,  or  the  terms  of  the  power,  will 
invalidate  the  deed  of  conveyance  made  in  pursuance  of  the 
sale,  even  in  the  hands  of  a  purchaser  without  actual  notice. 
There  must  be  a  substantial  compliance  with  such  regula- 
tions, in  order  to  pass  a  good  title  to  the  purchaser.2 

1  Howard  v.  Ames,  3  Mete.  311 ;  Robertson  v.  Norris,  1  Giff.  424;  Jencks 
».  Alexander,  11  Paige  Ch.  624;  Ellsworth  v.  Lockwood,  42  N.  Y.  89;  Leet  v. 
McMaster,  51  Barb.  236 ;  Montague  v.  Dawes,  14  Allen,  369.  Mere  inade- 
quacy of  price  will  not  vitiate  the  sale,  but  if  the  property  has  been  so  grossly 
sacrificed  that  the  purchaser  may  be  presumed  to  know  of  it,  the  sale  will  be 
avoided.  Vail  v.  Jacobs,  62  Mo.  ISO;  King  v.  Bronson,  122  Mass.  122 ;  Horsey 
v.  Hough,  38  Md.  130;  Landrum  v.  Union  Bk.  of  Mo.,  63  Mo.  48.  And  any 
fraudulent  mismanagement  or  deception  practised  upon  the  mortgagor  will 
avoid  the  sale,  if  the  purchaser  participates  in  it,  or  is  cognizant  of  it.  Banta 
v.Maxwell,  12  How.  Pr.  479;  Lee  v.  McMasters,  51  Barb.  236;  Encking  v. 
Simmons,  28  Wis.  272;  Bush  v.  Sherman,  80  111.  160;  Hurd  v.  Case,  32  111. 
45;  Jackson  v.  Crafts,  18  Johns.  110;  Mapps  v.  Sharpe,  32  111.  13;  Mann  t>. 
Best,  62  Mo.  491.  The  action  to  set  aside  a  sale  under  a  power  is  an  equitable 
proceeding  to  redeem  the  property.  A  biU  to  set  aside  the  sale,  without  offer- 
ing to  redeem,  will  not  be  entertained.  Candee  v.  Burke,  1  Hun,  546 ;  Vroom 
".  Ditmas,  7  Cow.  13 ;  Robinson  v.  Ryan,  25  N.  Y.  320 ;  Schwartz  v.  Sears, 
Walk.  (Mich.)  170.  But  the  bill  must  be  filed  within  a  reasonable  time  after 
ihe  discovery  of  the  fraud  or  other  equitable  claim.  Acquiescence  is  treated 
as  a  waiver  of  all  irregularities  in  the  sale.  Hamilton  v.  Lubukee,  51 111.415; 
IJush  v.  Sherman,  80  111.  160;  Hoffman  v.  Harrington,  33  Mich.  392;  Landrum 
v.  Union  Bk.  of  Mo.,  63  Mo.  48. 

2  Smith  v.  Provin,  4  Allen,  518;  Roarty  v.  Mitchell,  7  Gray,  243;  Bradley 
v.  Chester  Val.  R.  R.,  36  Pa.  St.  141 ;  Longwith  v.  Butler,  3  Gilm.  32 ;  Cooper 
v.  Crosby,  lb.  508;  John  v.  Bumpstead,  17  Barb.  100;  Root  v.  Wheeler,  12 
Abb.  Pr.  294;  Gibson  v.  Jones,  5  Leigh,  370;  Ormsby  v.  Tarascon,  3  Litt. 
404 ;  Dana  v.  Farrington,  4  Minn.  433.  Among  others,  the  following  circum- 
stances have  been  deemed  sufficient  to  set  aside  the  sale  :  Neglect  to  give  the 
required  notice  to  the  parties  interested.  Low  v.  Purdy,  2  Lans.  422 ;  King  v. 
Duntz,  11  Barb.  191;  Randall  v.  Hazleton,  12  Allen,  442;  Hull  v.  Cushman, 

19  289 


§    365  REMEDIES    INCIDENT   TO    MORTGAGES.  [PART   L. 

§  365.  Purchase  by  mortgagee  at  his  own  sale.  —  Since 
the  mortgagee  as  donee  of  the  power  is  a  trustee  for  all  par- 
ties concerned,  he  will  not  be  permitted  to  purchase  at  his 
own  sale,  directly  or  indirectly,  unless  he  is  authorized  to 
do  so  by  statute  or  by  the  terms  of  the  mortgage.  And 
such  a  purchase  may  be  avoided  at  the  instance  of  the  mort- 
gagor, even  though  the  consideration  be  fair  and  adequate.1 

14  N.  H.  171;  Green  v.  Cross,  45  N.  H.  594;  Drinan  v.  Nichols,  115  Mass. 
353 ;  Carpenter  v.  Black  Hawk,  etc.,  Co.,  65  N.  Y.  43 ;  Lee  v.  Mason,  10  Mich. 
403 ;  Rutherford  v.  Williams,  42  Mo.  18.  An  insufficient  publication  of  notice. 
Lawrence  v.  Farmers'  Loan,  etc.,  Co.,  13  N.  Y.  642 ;  Elliott  v.  Wood,  45  N. 
Y.  71;  Gibson  v.  Jones,  5  Leigh,  370;  Hoffman  v.  Anthony,  6  R.  I.  282; 
Doyle  v.  Howard,  16  Mich.  261 ;  Butterfield  v.  Farnham,  19  Minn.  85 ;  Bush 
v.  Sherman,  80  111.  160;  Hubbell  v.  Sibley,  50  N.  Y.  468;  Calloway  v.  Peo- 
ple's Bank,  54  Ga.  441 ;  Fenner  v.  Tucker,  6  R.  I.  551 ;  Banning  v.  Arm- 
strong, 7  Minn.  46.  It  is  not  usually  necessary  to  sell  the  property  in  parcels, 
but  if  it  is  essentially  advantageous  to  the  mortgagor,  a  failure  to  do  so  will 
vitiate  the  sale.  Rowley  v.  Brown,  1  Binn.  61 ;  Chesley  v.  Chesley,  49  Mo. 
540;  s.  c,  54  Mo.  347;  Sumrall  v.  Chaffin,  48  Mo.  402;  Ellsworth  v.  Lock- 
wood,  42  N.  Y.  89 ;  see  statutes  in  New  York,  and  several  other  States  to  the 
same  effect.  A  sale  on  credit,  when  that  is  not  expressly  authorized,  is  in- 
valid. Olcutt  v.  Bynum,  17  Wall.  44;  Mead  v.  McLaughlin,  42  Mo.  198;  see 
2  Jones  on  Mort.,  sects.  1868,  1869.  But  he  may  give  credit  for  what  is  com- 
ing to  him,  although  not  authorized.  Strother  v.  Law,  54  111.  413.  A  sale  is 
absolutely  void  only  where  there  is  a  complete  failure  to  comply  with  an 
essential  requirement,  (Bigler  v.  Waller,  14  Wall.  297;)  and  only  voidable  at 
the  election  of  the  parties,  when  the  exercise  of  a  discretion  as  to  the  manner 
of  compliance  is  irregular  or  unwise.  Ingle  v.  Culbertson,  43  Iowa,  265. 
And  to  avoid  the  sale  in  the  hands  of  a  purchaser  for  value,  notice  of  the 
irregularity  must  be  brought  to  him.  Beatie  v.  Butler,  21  Mo.  320;  Mann  v. 
Best,  62  Mo.  461 ;  Sternberg  v.  Dominick,  14  Johns.  435 ;  Montague  v.  Dawes, 
12  Allen,  397;  Hoit  v.  Russell,  56  N.  H.  559;  Hamilton  v.  Lubukee.  51  111. 
415;  Jackson  v.  Henry,  10  Johns.  185. 

1  Downes  v.  Grazebrook,  3  Meriv.  207 ;  Davone  v.  Fanning,  5  Johns.  Ch. 
257;  Jackson  v.  Walsh,  14  Johns.  415;  Elliott  v.  Wood,  45  N.  Y.  71; 
Patten  v.  Pearson,  57  Me.  435 ;  Jennison  v.  Hapgood,  7  Pick.  1 ;  Howard 
v.  Ames,  3  Mete.  308;  Dyer  v.  Shurtlieff,  112  Mass.  165;  17  Am.  Rep. 
77;  Hyndman  v.  Hyndman,  19  Vt.  9;  Montague  v.  Dawes,  12  Allen,  400; 
Hall  v.  Bliss,  118  Mass.  560;  19  Am.  Rep.  475;  Waters  v.  Groom,  11 
Clark.  &  F.  684 ;  Michaud  v.  Girod,  4  How.  553 ;  Scott  v.  Freeland,  7  Smed. 
&  M.  418;  Hall  v.  Towne,  45  111.  493;  Roberts  v.  Fleming,  53  111.  196;  Ruth- 
erford D.Williams,  42  Mo.  18;  Parmenter  v.  Walker,  9  R.  I.  225;  White- 
head v.  Hellen,  76  N.  C.  99;  Korns  v.  Shaffer,  27  Md.  8?;  Benham  v.  Rowe, 

290 


CH.  X.]  REMEDIES    INCIDENT   TO    MORTGAGES.  §    366 

The  purchase  by  the  mortgagee  without  express  authority- 
is,  however,  only  voidable  at  the  election  of  the  mortsrao-or 
and  his  privies.  And  they  cannot  invalidate  the  sale,  if  the 
property  in  the  meantime  has  passed  into  the  hands  of  an 
innocent  purchaser.1 

§  366.  Extinguishment  of  the  power. — The  power  is 
extinguished  by  any  acts,  which  will  discharge  the  mort- 
gage, such  as  payment  or  tender  of  payment,  and  the  exer- 
cise of  the  power  afterwards  will  not  vest  a  good  title  in  any 
purchaser,2  unless  the  mortgagor  by  his  own  acts  is  estopped 

2  Cal.  387.  Statutory  provisions,  authorizing  the  mortgagee  to  purchase  at 
his  own  sale,  are  to  be  found  in  New  York,  Michigan,  Wisconsin,  Minnesota, 
Maryland.  2  Washb.  on  Real  Prop.  74 ;  2  Jones  on  Mort.,  sect.  1740.  It  is 
not  necessary  to  show  fraud  or  unfair  dealing  in  order  to  avoid  purchase  by 
the  mortgagee.  Rutherford  v.  "Williams,  42  Mo.  18;  Thornton  v.  Irwin,  43 
Mo.  153;  Blockley  v.  Fowler,  21  Cal.  326.  Contra,  Richards  v.  Holmes,  18 
How.  143;  Howard  v.  Davis,  6  Texas,  174;  Hamilton  v.  Lubukee,  51  111.  420. 
When  the  sale  is  made  under  a  judicial  decree,  or  by  a  public  officer,  when 
that  is  permitted,  there  is  no  restriction  upon  the  right  of  the  mortgagee  to 
purchase.  Richards  v.  Holmes,  18  How.  143;  Bloom  v.  Rensselaer,  15  111. 
503 ;  Allen  v.  Chatfield,  8  Minn.  435 ;  Ramsey  v.  Merriam,  6  Minn.  168.  Con- 
tra, Saines  v.  Allen,  58  Mo.  537 

1  Dexter  v.  Shepard,  117  Mass.  480;  Burns  v.  Thayer,  115  Mass.  89;  Rob- 
inson v.  Cullom,  41  Ala.  693 ;  Edmondson  v.  Welsh,  27  Ala.  578 ;  Rutherford 
v.  Williams,  42  Mo.  18;  Thurston  v.  Prentiss,  1  Mich.  193;  Benham  v.  Rowe, 
2  Cal.  387.  And  the  right  to  avoid  the  sale  is  extinguished  by  ratification  of 
the  mortgagor,  or  his  acquiesence  therein  for  an  unreasonably  long  time. 
Dobson  v.  Racey,  8  N.  Y.  216 ;  Nichols  v.  Baxter,  5  R.  I.  491 ;  Patten  v.  Pear- 
son, 60  Me.  223;  Learned  v.  Foster,  117  Mass.  365;  Bergen  v.  Bennett,  1 
Caines's  Cas.  19 ;  Munn  v.  Burgess,  70  111.  604 ;  Medsker  v.  Swaney,  45  Mo.  273. 

2  Cameron  v.  Irwin,  5  Hill,  272;  Charter  v.  Stevens,  3  Denio,  33;  Burnet 
v.  Dennister,  5  Johns.  Ch.  35 ;  Warner  v.  Blakeman,  36  Barb.  501 ;  2  Jones 
on  Mort.,  sects.  886-893;  Jenkins  v.  Jones,  2  Giff.  99;  Lowe  v.  Grinnan,  19 
Iowa,  192.  Tender  after  condition  broken  does  not  at  common  law  extinguish 
the  power.  Cranston  v.  Crane,  97  Mass.  459 ;  Montague  v.  Dawes,  12  Allen, 
397.  But  in  most  of  the  States,  payment  has  the  same  effect  after  as  well  as 
before  condition  broken.  Jenkins  v.  Jones,  supra;  Cameron  v.  Irwin,  supra; 
Flower  v.  Elwood,  66  111.  438;  Burnet  v.  Denniston,  5  Johns.  Ch.  35;  Whelom 
v.  Reilly,  61  Mo.  565 ;  see  2  Jones  on  Mort.,  sect.  893 ;  and  ante,  sect.  333. 
But  as  long  as  the  mortgage  remains  unsatisfied  on  the  records,  a  sale  after 
payment  would  be  upheld  in  favor  of  a  purchaser  for  value  and  without  notice ; 

291 


§    368  REMEDIES   INCIDENT   TO   MORTGAGES.         [PART    I. 

from  denying  the  validity  of  the  sale.  Thus,  for  example, 
if  the  mortgagor  is  present  at  the  sale  and  makes  no  pro- 
test, and  gives  no  notice  of  his  rights  to  the  bystanders,  he 
will  be  precluded  under  the  doctrine  of  estoppel  from  set- 
ting aside  the  sale  as  against  an  innocent  purchaser.1 

§  367.  Application  of  the  purchase-money.  —  The  mort- 
gagee, on  receiving  the  proceeds  of  sale,  must  apply  it 
first  to  the  expenses  of  the  sale,  and  then  to  the  satisfaction 
of  the  mortgage-debt.  And  if  there  is  a  surplus  remaining, 
he  holds  it  in  trust  for  the  junior  incumbrancers,  and  lastly, 
the  mortgagor.  Such  surplus  has  in  equity  all  the  qualities 
of  real  estate,  and,  if  the  mortgagor  has  died,  will  be  dis- 
tributed among  the  widow  and  heirs,  instead  of  going  to 
his  personal  representatives.2 

§  368.  Deeds  of  trust.  —  Somewhat  similar  in  effect  to 
mortgages  with  power  of  sale  are  deeds  of  trust,  in  which 
the  property  is  conveyed  to  a  trustee  in  trust  to  secure  the 
creditor  in  his  claim,  and  to  sell  the  property  for  the  satis- 

Elliott  v.  Wood,  53  Barb.  285 ;  Brown  v.  Cherry,  56  Barb.  635 ;  Warner  v. 
Blakeman,  36  Barb.  501. 

1  Cromwell  o.  Bank  of  Pittsburg,  2  Wall.  jr.  569;  Smith  v.  Newton,  38  111. 
230. 

2  Buttrick  v.  Wentworth,  6  Allen,  79 ;  Andrews  v.  Fisk,  101  Mass.  422 ; 
Dunning  v.  Dean  Nat.  Bank,  61  N.  Y.  497;  19  Am.  Rep.  293;  Sweezy  v. 
Thayer,  1  Duer,  286;  Hawley  i>.  Bradford,  9  Paige,  200;  Pickett  v.  Buckner, 
45  Miss.  226 ;  Fox  v.  Pratt,  27  Ohio  St.  512 ;  Hinchman  v.  Stiles,  9  N.  J.  Eq. 
454;  Shaw  v.  Hoodley,  8  Blackf.  165;  Foster  v.  Potter,  37  Mo.  534;  Reid  v. 
Mullins,  43  Mo.  306.  In  Vermont  and  Michigan,  the  surplus  is  held  to  be  per- 
sonalty, and  vests  in  the  personal  representatives  instead  of  the  widow  and 
heirs.  Varnum  v.  Meserve,  8  Allen,  158;  Smith  v.  Smith,  13  Mich.  258.  The 
surplus  is  distributed  among  the  claimants  according  to  the  priority  of  their 
respective  interests,  and  their  rights  in  case  of  a  dispute  may  be  settled  by  a 
suit  against  the  mortgagee  for  the  recover}'  of  their  alleged  share  in  the  sur- 
plus. Bevier  v.  Schoonmaker,  29  How.  Pr.  411;  Cope  v.  Wheeler,  41  N.  Y. 
303;  Stoever  v.  Stoever,  9  Serg.  &  R.  434;  Matthews  v.  Durvea,  45  Barb.  69. 
Or  the  mortgagee  may  file  a  bill  of  interpleader?  and  compel  the  adverse  claim- 
ants to  settle  their  disputes.  Bleeker  v.  Graham,  2  Ed,w.  Ch.  647 ;  The  People 
v.  Ulster  Com.  Pleas,  18  Wend.  628;  Bailey  v.  Merritt,  7  Minn.  159. 

292 


CH.  X.]  REMEDIES    INCIDENT    TO   MORTGAGES.  §    368 

faction  of  the  debt,  if  it  is  not  paid  at  maturity.  This 
conveyance  is  in  the  nature  of  a  mortgage,  and  is  very  often 
used  to  secure  an  issue  of  railroad  bonds,  so  as  to  avoid  the 
necessity  of  giving  a  mortgage  to  each  bond.  But  it  is  also 
very  generally  used  in  some  of  the  Western  States  in  the 
place  of  an  ordinary  mortgage,  in  order  to  obviate  the  diffi- 
culty of  securing  a  valid  sale  of  the  premises,  which  is  so 
often  experienced  when  the  mortgagee  exercises  the  power 
of  sale.  It  is  the  conveyance  of  a  legal  estate  in  trust  to 
secure  the  debt  and  its  satisfaction  by  sale  upon  the  breach 
of  the  condition.1  And  it  has  been  held  that  mere  payment 
of  the  debt  will  not  revest  the  title  in  the  grantor.2  But  the 
payment  or  tender  of  payment  will  render  the  trust  inoper- 
ative so  far  as  the  subsequent  exercise  of  the  power  is  con- 
cerned.3 The  grantor  by  such  a  conveyance  divests  himself 
of  his  entire  legal  estate  in  possession,  and  has  nothing  left, 
against  which  execution  may  issue.  But  he  has  a  reversion- 
ary interest,  which  in  equity  may  be  reached  by  a  creditor's 
bill,  and  which  is  also  capable  of  alienation.4  If  the  trus- 
tee dies  or  refuses  to  execute  the  trust,  the  court  will  appoint 
another  to  take  his  place;  and  in  some  of  the  States,  by 
statute,  it    is    provided  that,  upon  the   death,   inability   or 

1  Devin  v.  Hendershott,  32  Iowa,  194;  Newman  v.  Samuels,  17  Iowa,  536; 
Sargent  v.  Howe,  21  111.  149;  Thornton  v.  Boyd,  31  111.  200;  Sherwood  v.  Sax- 
ton,  63  Mo.  78;  Soutter  v.  Miller,  15  Fla.  625;  Richard  v.  Holmes,  18  How. 
147 ;  Coe  v.  McBrown,  22  Ind.  257 ;  Webb  v.  Hoselton,  4  Neb.  308 ;  19  Am. 
Rep.  638 ;  Woodruff  v.  Robb,  19  Ohio,  122 ;  Chappell  v.  Allen,  38  Mo.  213. 
See  Heard  v.  Baird,  40  Miss.  799;  Lenox  v.  Reed,  12  Kan.  233.  But  see  2 
Am.  Law  Reg.  (n.  s.)  655. 

2  Heard  v.  Baird,  40  Miss.  796.  But  the  weight  of  authority  is  in  favor  of 
holding  that  a  reconveyance  is  not  necessary,  although  a  satisfaction  on  the 
records  may  be  required.  Crosby  v.  Huston,  1  Texas  239 ;  Ingle  v.  Culbertson, 
43  Iowa,  265;  McGregor  v.  Hall,  3  St.  &  P.  397  ;  Woodruff  v.  Robb,  19  Ohio, 
212;  Smith  v.  Doe,  26  Miss.  291. 

3  Thornton  v.  Boyden,  31  111.  210;  Lowe  v.  Grinnan,  19  Iowa,  197;  Hear! 
v.  Baird,  40  Miss.  796. 

*  Pettit  v.  Johnson,  15  Ark.  55;  Turner  v.  Watkins,  31  Ark.  429;  Morris 
v.  Way,  16  Ohio,  469 ;  Mclntyre  v.  Agric.  Bank,  1  Freem.  Ch.  105 ;  Heard  o. 
Baird,  40  Miss.  796;  2  Jones  on  Mort.,  sect.  1769. 

293 


§    369  REMEDIES    INCIDENT   TO   MORTGAGES.         [PART   I. 

refusal  of  the  trustee  to  serve,  the  sheriff  will  be  authorized 
to  execute  the  trust.  Or  the  deed  may  itself  provide  for  a 
substitution  of  trustees.  But  without  express  authority  the 
trustee  can  in  no  case  delegate  his  power  to  sell.1  But  the 
court  may,  if  they  deem  it  wise,  compel  the  trustee  to  exe- 
cute the  trust  instead  of  appointing  another.2  This  class  of 
deeds  of  trust  is  governed  by  the  same  equitable  rules,  which 
are  applied  to  ordinary  trusts,  unless  there  are  statutory 
provisions  intended  to  supersede  them.  JJ- 

§  369.   Contribution  to  redeem  —  General  statement.  — 

When  one  of  two  or  more  persons  jointly  liable  on  a  debt 
pays  the  whole  debt,  he  has  the  right  to  call  upon  the  others 
for  contribution  towards  such  payment  in  proportion  to 
their  several  interests  in  the  debt.  This  liability  for  con- 
tribution is  an  incident  to  all  contractual  obligations,  and 
the  same  rules  of  construction  apply,  whatever  may  be  the 
nature  or  origin  of  the  debt.  In  the  present  discussion  the 
liability  for  contribution  arises  out  of  the  joint  obligation  of 
several  persons  to  answer  for  the  mortgage-debt,  either  in 
their  person  or  with  their  interests  in  the  mortgaged  prem- 
ises. It  has  been  explained  that  when  a  person  is  entitled 
to  redeem,  and  is  interested  only  in  a  part  of  the  premises, 
he  must  pay  the  entire  debt,  and,  as  against  the  others 
jointly  interested  with  him,  he  becomes  subrogated  to  the 

1  Holden  v.  Stickney,  2  Mc  Arthur,  141 ;  Farmers'  Loan,  etc.,  Co.  v.  Hughes, 

11  Hun,  130;  McKnight  v.  Winner,  38  Mo.  132;  Whittlesey  v.  Hughes,  39 
Mo.  13.  If  there  are  two  or  more  trustees,  upon  the  death  of  one,  the  sur- 
vivors may  execute  the  power.  Peter  v.  Beverley,  10  Pet.  565 ;  Franklin  o. 
Osgood,  14  Johns.  527;  Hannah  v.  Carrington,  18  Ark.  104 

2  Lemer  v.  Armstrong,  4  Iowa,  482;  Sargent  v.  Howe,  21  111.  148;  Drano 
v.  Gunter,  19  Ala.  731  ;  Bradley  v.  Chester  Val.  R.  R.,  36  Pa.  St.  141.  Sales 
under  the  power  are  watched  and  closely  scrutinized  by  the  courts,  and  a  court 
of  equity  will  at  any  time,  at  the  instance  of  one  interested  in  the  property, 
direct,  restrain,  or  enforce  the  exercise  of  the  power.  G-oode  v.  Comfort,  39 
Mo.  325 ;  Youngman  v.  Elmira,  etc.,  R.  R.,  65  Pa.  St.  278 ;  Newman  y.  Jackson, 

12  Wheat.  572;  Brisbane  v.  Sfeoughton,  17  Ohio,  48S ;  Brown  r.  Bartoe.  10 
Smed.  &  M.  275;  K'ock  v.  Briggs,  14  Cal.  256:  Reece  V.  Allen,  5  Gilm.  236. 

294 


CH.  X.]  REMEDIES   INCIDENT   TO   MORTGAGES.  §    370 

mortgagee,  and  is  equitable  assignee  of  the  mortgage,  even 
though  the  mortgage  has  been  satisfied  on  the  records.  He 
can  then,  in  turn,  foreclose  the  mortgage  against  them  if 
they  refuse  to  pay  their  pro  rata  share  of  the  debt.  This 
liability  constitutes  the  right  to  contribution,  as  applied  to 
mortgages.  It  is  not  a  personal  liability  resting  upon  the 
persons  interested  in  the  mortgaged  premises  ;  their  inter- 
ests are  alone  liable.  Nor  can  they  be  compelled  to  con- 
tribute ;  they  have  the  right  to  refuse  and  to  surrender  their 
interests  to  forfeiture  under  foreclosure.1  This  liability  of 
their  interests  depends  upon  the  equality  or  inequality  of 
their  respective  equities  in  regard  to  the  mortgage  and  the 
debt,  and  must,  therefore,  vary  according  to  the  relation  of 
the  parties  between  whom  the  question  arises. 

§  370.  Mortgagor  v.  his  assignees.  —  Since  the  mort- 
gagor is  personally  liable  to  pay  the  debt,  as  a  general  rule 
he  would  have  no  right  to  call  upon  his  assignees  to  con- 
tribute, nor  could  his  heirs  or  devisees  claim  such  a  right. - 
But  if  the  purchaser  assumed  the  mortgagor's  liability  as  a 
part  of  the  consideration  of  the  conveyance,  should  the 
mortgagor  be  afterwards  compelled  by  the  mortgagee  to 
pay  the  debt,  the  mortgagor  would  be  subrogated  to  the 
rights  of  the  mortgagee  under  the    mortgage,  and    could 

O  OCT  CT     CT      7 

enforce    it   against   such  purchaser.3      Where  there  is  no 

1  Cheeseborough  v.  Millard,  1  Johns.  Ch.  409;  Stevens  v.  Cooper,  lb. 
425 ;  Lawrence  v.  Cornel-1,  4  Johns.  Ch.  542 ;  Salem  v.  Edgerly,  33  N.  H.  46 ; 
Stroud  v.  Casey,  27  Pa.  St.  471 ;  Chase  v.  "Woodbury,  6  Cush.  143 ;  Gibson  v. 
Crehore,  5  Pick.  140 ;  Johnson  v.  Rice,  8  Me.  167 ;  Briscoe  v.  Power,  47  111. 
449. 

2  Harbert's  Case,  3  Rep.  11;  Chase  v.  Woodbury,  6  Cush.  143;  Allen  v. 
Clark,  17  Pick.  47 ;  Beard  v.  Fitzgerald,  108  Mass.  134 ;  Clowes  v.  Dickinson, 
5  Johns.  Ch.  235;  Lock  v.  Fulford,  52  111.  106;  Johnson  v.  Williams,  4  Minn. 
268 ;  2  Jones  on  Mort.,  sect.  1090. 

8  Cox  v.  Wheeler,  7  Paige  Ch.  257 ;  Jumel  v.  Jumel,  lb.,  591 ;  Halsey  v. 
Reed,  9  Paige  Ch.  446 ;  Morris  v.  Oakman,  9  Pa.  St.  498  ;  Kinnear  v.  Lowell,  34 
Me.  299;  Fletcher  v.  Chase,  16  N.  H.  42;  Sweet  v.  Sherman,  109  Mass.  231 ; 
Funk  v.  McReynolds,  33  111.481;  Lilly  v.  Palmer,  51  111.  333;  Baker  v.  Ter- 
rell, 8  Minn.  199;  Russell  v.  Pistor,  7  N.  Y.  171. 

295 


§    371  REMEDIES    INCIDENT   TO   MORTGAGES.         [PART   I. 

agreement  on  the  part  of  the  purchaser  to  pay  the  debt,  if 
the  mortgage  is  foreclosed,  the  purchaser  can  claim  from 
the  mortgagor  exoneration  for  the  full  amount  lost  by  fore- 
closure.1 

§  371.  Contribution  between  tbe  assignees  of  tbe  mort- 
gagor. —  If  the  mortgaged  property  consists  of  two  or  more 
parcels  of  land,  and  they  are  simultaneously  conveyed  by 
the  mortgagor  to  different  persons,  and  one  of  the  parcels 
is  sold  under  foreclosure  of  the  mortgage,  the  assignee  or 
grantee  of  that  parcel  has  the  right  to  recover  from  the  as- 
signees of  the  other  parcels  their  pro  rata  share  of  the  debt ; 
the  debt  being  divided  among  them  in  proportion  to  the 
value  of  their  respective  parcels.*2  But  where  the  assign- 
ments have  been  made  successively ,  or  at  different  times,, 
the  courts  have  delivered  contrary  opinions  in  respect  to 
their  liability  for  contribution.  In  most  of  the  States  the 
rule  prevails  that  their  liability  for  contribution  to  each 
other  is  in  the  inverse  order  of  alienation  ;  in  other  words, 
that  the  equity  of  the  prior  purchaser  or  assignee  is  superior 
to  that  of  the  subsequent  purchaser.  So,  if  the  prior  pur- 
chaser is  called  upon  to  redeem,  or  his  lot  or  parcel  is^ fore- 
closed, he  becomes  an  equitable  assignee  of  the  mortgage, 
and  may  enforce  it  against  the  subsequent  purchasers  of  the 
other  parcels,  who,  in  order  to  redeem,  must  contribute  to 
the  full  value  of  their  estates  in  the  inverse  order  of  their 
alienation,  the  last  being  required  to  exhaust  his  entire  in- 
terest in  the  mortgaged  property  before  there  can  be  any 

1  Davis  v.  Winn,  2  Allen,  111;  Downer  v.  Fox,  20  Vt.  388;  Young  v. 
Williams,  17  Conn.  393;  Burnett  v.  Denniston,  5  Johns.  Ch.  35;  McLean  v. 
Towle,  3  Sandf.  Ch.  119;  Brainard  v.  Cooper,  10  N.  Y.  356;  Flachs  c.  Kelly, 
30  111,  462. 

2  Chase  v.  Woodbury,  6  Cush.  143 ;  Bailey  ».  Myrick,  50  Me.  171 ;  Aiken 
v.  G-ale,  37  N.  H.  501 ;  Stevens  v.  Cooper,  1  Johns.  Ch.  425 ;  Briscoe  v.  Power* 
47  111.  448 ;  Bates  v.  Ruddock,  2  Iowa,  423. 

296 


CH.  X.]  REMEDIES   INCIDENT    TO    MORTGAGES.  §    372 

right  of  contribution  against  a  prior  purchaser.  If,  there- 
fore, the  last  parcel  conveyed  is  sufficient  to  satisfy  the 
debt,  the  prior  purchaser  takes  his  estate  free  from  any  lia- 
bility for  contribution.  The  inequality  of  their  equities 
rests  upon  the  doctrine  that  inasmuch  as,  after  the  first  as- 
signment, the  estate  remaining  in  the  mortgagor  became  the 
primary  fund  for  the  satisfaction  of  the  debt,  the  second 
and  other  subsequent  purchasers  took,  in  respect  to  their 
relative  liabilities  under  the  mortgage,  only  such  equities  as 
the  mortgagor  had  at  the  time  of  the  successive  conveyances 
to  them.1  In  a  few  of  the  States  it  is  held  that  the  equities 
are  equal  between  assignees  of  the  mortgagor,  whether  the 
alienations  are  simultaneous  or  successive,  and  this  opinion 
finds  strong  support  in  Judge  Story.2  But  it  is  believed 
that  the  preponderance  of  authority  is  in  favor  of  the  former 
theory,  and  it  may  be  accepted  as  the  prevailing  rule  in  this 
country. 

§  372.  Contribution  between  the  surety  and  the  mort- 
gagor. —  Where  the  surety,  because  of  his  personal  liability, 

1  Cushing  v.  Ayer,  25  Me.  383 ;  Shepherd  v.  Adama,  32  Me.  64 ;  Brown  v. 
Simons,  44  N.  H.  475 ;  Aiken  v.  Gale,  37  N.  H.  501 ;  Lyman  v.  Lyman,  32 
Vt.  79 ;  Gates  v.  Adams,  24  Vt.  70 ;  Bradley  v.  George,  2  Allen,  392 ;  Gill  v. 
Lyon,  1  Johns.  Cb.  447 ;  Jumel  v.  Jumel,  7  Paige  Ch.  591 ;  Patty  v.  Pease, 
8  Paige  Ch.  277 ;  Nailer  v.  Stanley,  10  Serg.  &  R.  450 ;  Cowden's  Estate,  1 
Pa.  St.  267;  Shannon  v.  Marselis,  1  N.  J.  Eq.  413;  Galkill  v.  Sine,  13  lb. 
400 ;  Henkle  v.  Allstadt,  4  Gratt.  284 ;  Jones  v.  Myrick,  8  Gratt.  179 ;  Stoney 
v.  Shultz,  1  Hill  Ch.  (S.  C.)  500;  Norton  v.  Lewis,  3  S.  C.  25;  Mobile  Dock, 
etc.,  Co.  v.  Kuder,  35  Ala.  717;  Aiken  v.  Brucey,  21  Ind.  139;  Johnson  u. 
Williams,  4  Minn.  268;  Inglehart  v.  Crane,  42  111.  261;  Niles  v.  Harmon,  80 
111.  396;  Ritch  v.  Eichelberger,  13  Fla.  169;  dimming  v.  Cumming,  3  Ga. 
460?  Beard  v.  Fitzgerald,  105  Mass.  134;  Mason  v.  Payne,  Walk.  (Mich.) 
459;  McKinney  v.  Miller,  19  Mich.  142;  McCullom  v.  Turpie,  32  Ind.  146; 
Worth  v.  Hill,  14  Wis.  559 ;  Spence  v.  Aldrich,  15  Wis.  316. 

2  Green  v.  Ramage,  18  Ohio,  428;  Stanley  v.  Stocks,  1  Dev.  Eq.  314; 
Barney  ».  Myers,  28  Iowa  1 ;  Bates  v.  Ruddick,  2  Iowa,  423 ;  Jobe  v.  O'Brien, 
2  Humph.  34;  Dickey  v.  Thompson,  8  B.  Mon.  312;  Story's  Eq.  Jur.,  sect. 
1233  b,  and  note. 

297 


§    373  REMEDIES    INCIDENT    TO    MORTGAGES.         [PART    I. 

pays  the  mortgage  debt,  such  payment  will  operate  as  an 
assignment  of  the  mortgage  to  him,  and  he  can  enforce  the 
mortgage  to  its  full  value  against  the  mortgagor,  his  heirs, 
and  even  his  assignees  for  value.  He  is  only  secondarily 
liable,  the  mortgagor,  and  with  him  the  mortgaged  premises, 
being  treated  as  the  primary  fund  out  of  which  the  debt  is 
to  be  satisfied,  and  until  they  have  been  exhausted  the 
surety  can  claim  complete  exoneration.1  But  if  the  surety 
be  also  the  mortgagor  and  the  other  co-debtor  the  principal, 
and  the  latter  pays  the  debt,  he  will  not  be  subrogated  to 
the  rights  of  the  mortgagee.  He  is  the  principal,  and  can 
claim  contribution  or  exoneration  of  no  one.2 

§  373.  Between  heirs,  widow,  and  devisees  of  the  mort- 
gagor. —  If  the  mortgagor  dies,  and  the  mortgaged  prem- 
ises descend  to  his  widow  and  heirs,  or  are  devised  by  will 
to  several  parties,  their  equities  being  equal,  if  one  of  them 
redeems  the  mortgage  will  be  assigned  to  him,  and  he  may 
foreclose  the  same  against  the  others  unless  they  contribute 
their  pro  rata  share  towards  redemption.  They  are  all  vol- 
unteers, whether  they  be  heirs  or  devisees,  and  it  is  likely  — 
if  a  part  of  the  mortgaged  premises  were  devised  and  a  part 
descended  to  the  heirs  —  there  would  be  a  right  in  favor  of 
the  devisee  to  contribution  from  the    heir,  and  vice  versa? 

1  Cheeseb rough  v.  Milliard,  1  Johns.  Ch.  409 ;  Hayes  v.  Ward,  4  Johns. 
€h.  123 ;  Ottman  v.  Moak,  3  Sandf.  Ch.  431 ;  Root  v.  Bancroft,  10  Mete.  48 ; 
Mathews  v.  Aikin,  1  Comst.  595 ;  Bk.  of  Albion  v.  Burns,  45  N.  Y.  170 ; 
Dearborn  v.  Taylor,  18  N.  H.  153;  Onio  Life  Ins.  Co.  v.  "Winn,  4  Md.  Ch. 
253;  Burton  v.  Wheeler,  7  Ired.  Eq.  217;  Bk.  of  S.  C.  v.  Campbell,  2  Rich. 
Eq.  179;    Billings  v.  Sprague,  49  111.  511;  McHenry  v.  Cooper,  27  Iowa,  146. 

1  Crafts  v.  Crafts,  13  Gray,  362;  Killborn  v.  Robins,  8  Allen,  471 :  Cherry 
v.  Monro,  2  Barb.  Ch.  618. 

3  Carll  v.  Butman,  8  Me.  102;  Gibson  v.  Crehore,  5  Pick.  146;  Houghton 
v.  Hapgood,  13  Pick.  158;  Swaine  v.  Perine,  5  Johns.  Ch.  490;  Fosters. 
Hilliard,  1  Story,  77;  Jones  v.  Sheward,  2  Dev.  &  B.  Eq.  179;  Merritt  v. 
Hosmer,  11  Gray,  296;  Bell  v.  Mayor  of  N.  Y.,  10  Paige  Ch.  49;  Drew  v. 
Rust,  86  N.  H.  343 ;  Eaton  v.  Simonds,  14  Pick.  98. 
298 


CH.  X.]  REMEDIES    INCIDENT   TO   MORTGAGES.  §    374 

§  374.  Between  the  mortgaged  property  and  the  mort- 
gagor's personal  estate. — Upon  the  death  of  the  mort- 
gagor, leaving  the  mortgage  unsatisfied,  a  claim  for 
contribution  or  rather  exoneration  sometimes  exists  against 
the  mortgagor's  personal  estate  in  favor  of  the  real  estate 
covered  by  the  mortgage.  The  claim  is  founded  upon  the 
doctrine  that  the  burden  was  imposed  upon  the  real  estate  for 
the  benefit  of  the  personal  estate,  and  as  between  the  heirs 
and  next  of  kin  the  latter  should  bear  the  loss.1  Only  heirs 
and  devisees  can  claim  this  right  of  exoneration.  Purchasers 
from  the  heirs,  and  voluntary  purchasers  from  the  mortga- 
gor, cannot ;  nor  can  the  heir  or  devisee  exercise  the  right 
if  they  have  parted  with  the  equity  of  redemption,  notwith- 
standing by  the  terms  of  their  conveyance  they  are  bound 
to  see  to  the  payment  of  the  mortgage.2  It  can  be  enforced 
only  against  the  personal  representatives  and  residuary  leg- 
atees. If,  therefore,  the  personal  estate  has  been  bequeathed 
to  others  in  the  shape  of  general  or  specific  legacies,  the 
right  to  exoneration  is  lost.3  Nor  can  the  right  be  exercised 
if  the  estate  of  the  mortgagor  is  insolvent,  and  whether  the 
estate  is  insolvent  or  not,  it  cannot  be  enforced  against 
property  which  has  been  levied  upon,  nor  will  the  right  of 
exoneration  in  any  case  take  precedence  to  liens  held  by 
creditors  upon  the  personal  property.*     In  New  York  there 

1  Cope  v.  Cope,  2  Salk.  449;  Patton  v.  Page,  4  Hen.  &  M.  449;  Henagan 
v.  Harllee,  10  Rich.  Eq.  285 ;  Trustees,  etc.,  v.  Dickson,  1  Freem.  Ch.  474. 
But  this  is  not  the  case,  where  the  mortgage  was  executed  by  a  prior  owner, 
and  the  ancestor  purchased  the  property  subject  to  the  mortgage.  The  heir 
or  devisee  must,  in  such  a  case,  pay  the  mortgage.  Tweddle  v.  Tweddle,  2 
Bro.  Ch.  101 ;  Cumberland  v.  Codington,  supra. 

2  Goodburn  v.  Stevens,  1  Md.  Ch.  42 ;  Lupton  v.  Lupton,  2  Johns.  Ch. 
614;  Cumberland  v.  Codington,  3  Johns.  Ch.  229;  Lockhardt  v.  Hardy,  9 
Beav.  379;  Haven  v.  Foster,  9  Pick.  112. 

8  Cope  v.  Cope,  2  Salk  449;  Mansell's  Estate,  1  Pars.  Eq.  Cas.  367; 
Mason's  Estate,  4  Pa.  St.  497;  Gibson  v.  McCormick,  10  Gill  &  J.  65;  Terr's 
Estate,  2  Rawle,  250. 

4  Gibson  v.  Crehore,  3  Pick.  475 ;  Church  v.  Savage,  7  Cush.  440. 

299 


§    376  REMEDIES    INCIDENT    TO    MORTGAGES.         [PART    I. 

will  be  no  such  claim  for  exoneration,  unless  the  mortgagor 
has  by  will  expressly  made  the  payment  of  the  debt  a  charge 
upon  the  personalty.1 

§  375.  Special  agreements  affecting  the  rights  of  con- 
tribution and  exoneration.  —  If,  in  any  case  where  the 
right  of  contribution  or  exoneration  exists  by  law,  the  par- 
ties to  the  mortgage  agree  that  one  or  more  parcels  covered 
by  the  mortgage  should  be  released  from  the  incumbrance, 
such  agreement  will  be  enforced  between  the  parties  and 
their  subsequent  assignees.  But  in  no  case  will  it  be  per- 
mitted to  affect  or  alter  the  equities  of  parties  who  had  pre- 
viously become  interested  in  the  mortgaged  property.2  And 
if  the  mortgagee  releases  one  part  of  the  mortgaged  prem- 
ises, after  the  mortgagor  had  assigned  another  part,  the 
mortgagee  can  only  enforce  the  mortgage  against  the  as- 
signee to  an  amount  determined  by  the  proportion  which 
the  value  of  the  entire  mortgaged  premises  bears  to  the  value 
of  such  assigned  parcel.3 

§  376.  Marshalling  of  assets  between  successive  mort- 
gagees.—  When  there  are  two  mortgages  upon  one  parcel 
of  land,  and  the  first  mortgage  covers  another  parcel  which 
is  not  included  in  the  second,  if  the  parcel  included  in  both 
mortgages  is  not  sufficient  to  satisfy  both  debts,  equity 
o-ives  the  junior  mortgagee  the  right  to  call  upon  the  senior 
mortgagee  to  exhaust  the  parcel  not  covered  by  both  mort- 
gages, before  he  forecloses  against  the  other  parcel.     But 

1  Moseley  v.  Marshall,  27  Barb.  42 ;  Eapalye  v.  Kapalye,  lb.  610 ;  Wright 
v.  Holbrook,  32  N.  Y.  587. 

2  Welsh  v.  Beers,  8  Allen,  151;  Bryant  v.  Damon,  6  Gray,  564;  Johnson 
v.  Rice,  8  Me.  157 ;  The  State  v.  Throup,*15  Wis.  314 ;  Cheesebrough  v.  Mil- 
liard, 1  Johns.  Ch.  425. 

3  Stevens  v.  Cooper,  1  Johns.  425 ;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151 ; 
Johnson  v.  Rice,  8  Me.  157;  Parkman  v.  Welsh,  19  Pick.  231;  Paxton  v. 
Harrier,  11  Pa.  St.  312 ;  Inglehart  v.  Crane,  42  111.  261 ;  Taylor  v.  Short,  2T 
Iowa,  361 ;  1  Am.  Rep.  280. 

300 


CH.  X.]  EEMEDIES   INCIDENT  TO   MORTGAGES.  §    376 

equity  will  not  compel  the  first  mortgagee  to  satisfy  himself 
in  that  manner,  if  it  would  be  detrimental  to  his  interests  or 
inconvenient  to  him.  In  such  a  case,  however,  the  court 
will  direct  him  to  assign  his  mortgage  to  the  junior  mortga- 
gee, who  may  then  foreclose  against  the  parcel  not  covered 
by  his  own  mortgage.1 

1  Lanoy  v.  Athol,  2  Atk.  446;  Evertson  v.  Booth,  19  Johns.  Ch.  486; 
€heesebrough  v.  Milliard,  1  Johns.  Ch.  412;  Warren  v.  Warren,  30  Vt.  530; 
Ayres  v.  Husted,  15  Conn.  516;  Reilly  v.  Mayor,  12  N.  J.  Eq.  55;  Blair  v. 
Ward,  10  N.  J.  Eq.  120;  Baine  v.  Williams,  10  Smed.  &  M.  113;  Inglehart 
v.  Crane,  42  111.  261 ;  White  v.  Polleys,  20  Wis.  505;  Clarke  v.  Bancroft,  13 
Iowa,  327;  Cowden's  Estate,  1  Pa.  St.  274;  Swigert  v.  Bk.  of  Ky.,  17  B.  Mon. 
285 ;  Miami  Ex.  v.  U.  S.  Bank.  Wright  (Ohio),  249 ;  Conrad  v.  Harrison,  3 
Leigh,  532;  Bk.  of  S.  C.  v.  Mitchell,  Rice  Eq.  389;  Marr  v.  Lewis,  31  Ark. 
203 ;  25  Am.  Rep.  553. 

301 


PART    II. 


EXPECTANT,  EXECUTORY,  AND  EQUITABLE 
INTERESTS- 

Chapter  XI.  Reversions. 
XII.  Remainders. 
XIII.  Uses  and  Trusts. 
XIY.  Executory  Devises. 
XT.  Powers. 

XVI.  Incorporeal  Hereditaments. 
XYII.  Licenses. 


303 


--yy^ 


**■ 


CHAPTEE  XL 

"  REVERSION." 

Section  385.  Definition. 

386.  Reversion  —  Assignable  and  devisable. 

387.  Reversion  —  Descendible  to  whom. 

388.  Dower  and  curtesy  in  reversions. 

389.  Rights  and  powers  of  the  reversion. 

§  385.  Definition.  —  A  reversion  is  that  estate  which  re- 
mains to  an  owner  of  land  after  he  has  conveyed  away  a 
particular  estate.  It  is  a  vested  estate  of  future  enjoyment, 
the  possession  of  which  is  postponed  until  the  determination 
of  the  estate  granted.  There  is  always  a  reversion  as  long 
as  the  entire  fee  has  not  been  exhausted.  Thus,  after  any 
number  of  successive  estates  for  life  or  for  years,  there  is 
still  a  reversion  left  in  the  grantor.  So  also  is  there  a  re- 
version after  an  estate-tail,  although  there  was  none  after 
the  fee  conditional  at  common  law,  which  the  statute  "  tie 
donis"  converted  into  an  estate-tail.1  But  where  one 
grants  a  base  or  determinable  fee,  since  what  is  left  in  him 
is  only  a  right  to  defeat  the  estate  so  granted  upon  the  hap- 
pening of  a  contingency,  there  is  no  reversion  in  him.  That 
is,  he  has  no  future  vested  estate  in  fee,  but  only  what  is 
■called  a  naked  possibility  of  reverter,  which  is  incapable  of 
alienation  or  devise,  although  it  descends  to  his  heirs.2     But 

1  2  Washb.  on  Real  Prop.,  737,  738 ;  2  Cruise  Dig.  335. 

2  2  Cruise  Dig.  335;  2  Washb.  on  Real  Prop.  739;  Ayresw.  Falkland,  1  Ld. 
Raym.  326;  Nicoll  v.  N.  Y.  &  Erie  R.  R.,  12  N.  Y.  134;  Cook  o.  Bisbee,  18 
Pick.  529 ;  The  State  v.  Brown,  27  N.  J.  L.  20.  But  where  the  particular  estate 
is  an  estate  upon  limitation,  and  more  particularly  where  it  is  limited  by  the 
life  of  a  person,  or  by  a  contingent  event,  which  may  cause  it  to  last  during 
some  life,  the  estate  will  not  be  such  a  determinable  or  qualified  fee  as  does 
not  admit  of  a  reversion,  although  the  estate  be  granted  to  A.  and  his  heirs. 
Thus,  a  limitation  to  A.  and  his  heirs  during  the  widowhood  of  B.  or  the  res- 

20  305 


§    386  REVERSION.  [PART    II. 

if  the  determination  of  such  an  estate  is  certain,  as  where  it 
depends  upon  an  event  which  is  sure  to  happen,  the  interest 
remaining  in  the  grantor  would  have  all  the  characteristics 
of  a  reversion.1  And  a  reversion  arises  where  there  is  a 
particular  estate  created  by  operation  of  law,  as  in  the  case 
of  dower  or  curtesy.2  Not  only  is  there  a  reversion  in  the 
case  of  an  owner  of  the  fee  parting  with  a  portion  of  it,  but 
it  exists,  whatever  may  be  the  estate,  whether  in  tail,  for 
life,  or  for  years,  out  of  which  a  less  estate  has  been  carved.3 

§  386.  Reversion  assignable  and  devisable.  —  The  re- 
version may  be  assigned  or  devised  as  freely  as  an  estate  in 
possession  —  subject,  of  course,  to  the  prior  particular  es- 
tate. It  cannot  be  conveyed  by  the  common-law  convey- 
ance of  feoffment,  since  the  reversioner  could  not  deliver 
actual  seisin.     But  it  may  be  transferred  by  grant  in  the 

idence  of  C.  in  Rome,  would  be  a  life-estate,  and  there  would  be  a  reversion  left 
in  the  grantor  instead  of  a  possibility  of  reverter.  1  Prest.  Est.  442 ;  The  State 
v.  Brown,  27  N.  J.  L.  20;  McKelway  v.  Seymour,  29  N.  J.  L.  329.  A  grant 
to  A.  and  his  heirs,  as  long  as  a  tree  stands,  would  likewise  leave  a  reversion 
in  the  grantor.  1  Prest.  Est.  440;  1  Washb.  on  Real  Prop.  90.  But  a  grant 
to  A.  and  his  heirs  until  B.  returns  from  Rome  would  be  a  fee  upon  limita- 
tion, and  since  it  is  doubtful  if  the  contingency  will  happen,  and  if  it  does  not, 
the  estate  becomes  an  absolute  fee  in  the  grantee,  the  grantor  has  only  a  possi- 
bility of  reverter,  and  not  a  reversion.  1  Washb.  on  Real  Prop.  90 ;  1  Prest 
Est.  441. 

1  The  State  v.  Brown,  27  N.  J.  L.  20 ;  McKelway   v.  Seymour,  29  N.  J.  L. 
329. 

2  It  is  so  far  a  reversion  that  if  the  reversioner  should  die  during  the  life- 
time of  the  tenant  in  dower  or  curtesy,  the  wife  or  husband,  respectively,  of 
the  reversioner  would  have  no  dower  or  curtesy  in  such  lands.  Dos  de  dote 
peti  non  debet.  Cook  v.  Hammond,  4  Mason,  485 ;  Geer  v.  Hamblin,  1  Me 
54;  Dunham  v.  Osborn,  1  Paige  Ch.  634;  Reynolds  v.  Reynolds,  5  Paige  Ch. 
161 ;  Safford  v.  Safford,  7  Paige  Ch.  259 ;  Co.  Lit.  31  a;  4  Kent's  Com.  65 ;  2 
Washb.  on  Real  Prop.  740.  But  if  theuwidow  of  the  ancestor  has  not  had  her 
dower  set  out,  when  the  widow  of  an  heir  demands  an  assignment,  the  latter 
widow  may  have  her  dower  set  out  in  all  the  property,  subject,  however,  to  be 
subsequently  defeated  pro  tanto  by  the  assignment  of  dower  to  the  senior 
widow.  1  Cruise  Dig.  164;  Hitchens  v.  Hitchens,  2  Vern.  405;  Geer  i\  Ham- 
blin, supra;  Elwood  v.  Klock,  13  Barb.  50;  Robinson  v.  Miller,  2  B.  Mon.  288. 

3  2  Washb.  on  Real  Prop.  739 ;  2  Cruise  Dig.  335,  336. 

306 


CH.  XI.]  REVERSION.  §    387 

nature  of  a  release,  or  by  any  of  the  deeds  operating  under 
the  Statute  of  Uses.1  At  common  law  it  was  necessary  to 
obtain  the  consent  of  the  tenant  of  the  particular  estate  for 
the  effective  transfer  of  the  reversion.  This  was  called  the 
attornment,  a  mutual  obligation  upon  tenants  and  rever- 
sioner which  prevailed  under  the  feudal  system.  But  it  was 
abolished  by  statute  in  the  reign  of  Queen  Anne.2  But  a  re- 
version cannot  be  granted  to  commence  in  the  future,  any 
more  than  an  estate  in  possession,  except  by  way  of  a  fu- 
ture use.3  The  reversion  must  be  so  assigned  that  the  es- 
tate of  the  grantee  shall  take  effect  in  possession  immediately 
after  the  determination  of  the  preceding  estate  in  posses- 
sion. 

§  387.  Reversion  descendible  to  whom. — Under  the 
common-law  maxim  of  descent,  seisinafacit  stipitem  nonjus, 
the  reversion  can  only  descend  to  the  heirs  of  the  person 
who  was  last  seised  in  fact.  If  a  person  grants  a  life  estate 
or  other  freehold  estate  less  than  a  fee,  his  heirs  could  in- 
herit the  reversion,  but  if  they  should  in  turn  die  before 
the  determination  of  the  particular  estate  of  freehold,  only 
those  who  can  trace  their  descent  as  heir  from  the  grantor 
could  inherit  from  such  heirs.4     If,  however,  the  reversion 

1  2  Washb.  on  Real  Prop.  738.  The  statement  in  the  text,  that  a  reversion 
cannot  be  conveyed  by  feoffment,  is  correct  only  when  the  particular  estate  al- 
ready granted  is  a  freehold.  If  the  particular  estate  is  less  than  a  freehold,  an 
estate  for  years,  the  actual  seisin  is  in  the  reversioner,  and  he  may  make  a 
conveyance  of  his  estate  by  feoffment.  Co.  Lit.  48  b ;  Williams  on  Real 
Prop.*242. 

2  2  Washb.  on  Real  Prop.  738 ;  Williams  on  Real  Prop.  247.  This  statute 
is  generally  recognized  as  in  force  in  the  United  States.  See  Farley  v.  Thomp- 
son, 15  Mass.  26;  Burden  v.  Thayer,  13  Mete.  78;  Baldwin  v.  Walker,  21 
Conn.  108 ;  Coker  v.  Pearsall,  6  Ala.  542. 

3  2  Washb.  on  Real  Prop.  738 ;  1  Prest.  Est.  89 ;  2  Cruise  Dig.  336 ;  Jones 
».  Roe,  3  T.  R.  93. 

4  2  Washb.  on  Real  Prop.  740,  741 ;  4  Kent's  Com.  385 ;  Williams  on  Real 
Prop.  100,  101  ;  3  Cruise  Dig.  142;  Cook  v.  Hammond,  4  Mason,  467;  Miller 
v.  Miller,  10  Mete.  393. 

307 


§    389  REVERSION.  [PART   II. 

is  assigned  or  devised,  or  is  sold  under  levy  of  execution, 
such  purchaser  or  devisee  would  constitute  a  new  stock  of 
descent,  and  his  heirs  would  take  the  reversion  as  if  it  had 
been  an  estate  in  possession.1  The  above  rule  only  ap- 
plies where  the  particular  estate  is  a  freehold.  If  it  be  a 
term  of  years  —  as  will  be  more  fully  explained  in  treating 
of  remainders  —  the  tenant  holds  the  possession  as  a  quasi- 
bailee  of  the  reversioner,  the  latter  is  deemed  to  be  ac- 
tually seised  ;  and  so  also  would  be  his  heirs  before  the 
expiration  of  the  estate  for  years.2  But  this  common-law 
doctrine  has  been  abrogated  in  most,  if  not  all,  the  States 
of  this  country,  so  that  it  possesses  at  present  but  little 
practical  importance.3 

§  388.  Dower  and  curtesy  in  reversions.  —  The  wife  or 
husband  of  the  reversioner  will  not  have,  respectively,  dower 
or  curtesy  in  the  reversion  unless  the  particular  estate  is  less 
than  a  freehold,  or  unless  it  determines  during  the  life-time  of 
the  reversioner.  The  vesting  of  these  estates  requires  ac- 
tual seisin  in  the  husband  or  wife,  and,  as  has  been  shown 
in  the  previous  paragraph,  the  reversioner  is  not  actually 
seised  when  the  particular  estate  is  a  freehold.4 

§  389.   Rights  and  powers  of  the  reversioner.  — It  may 

be  generally  stated,  that  the  reversioner  has  all  the  powers 

1  1  Washb.  on  Real  Prop.  741 ;  Williams  on  Real  Prop.  100, 101 ;  4  Kent's 
Com.  386. 

2  Co.  Lit.  15  a;  2  Washb.  on  Real  Prop.  741. 

3  2  Washb.  on  Real  Prop.  741.     Seepost,  Chapter  on  Descent. 

*  2  Washb.  on  Real  Prop.  741 ;  2  Cruise  Dig.  338 ;  4  Kent's  Com.  39 ; 
Brooks  v.  Everett,  13  Allen,  458 ;  Eldredge  v.  Forrestall,  7  Mass.  253 ;  Robin- 
son v.  Codman,  1  Sumn.  130;  Fisk  v.  Eastman,  5  !N.  H.  240;  Otisr.  Parshley, 
10  N.  H.  403;  Dunham  v.  Osborn,  1  Paige  Ch.  634;  Durando  v.  Durando,  23 
N.  Y.  331 ;  Shoemaker  v.  Walker,  2  Serg.  *fe  R.  556 ;  Arnold  v.  Arnold,  8  B. 
Mon.  202.  And  if  the  husband  sells  his  reversion  during  the  continuance  of 
the  prior  freehold  estate,  the  wife  loses  all  possibility  of  acquiring  the  dower 
right  bv  the  determination  of  the  particular  estate.  Gardner  v.  Greene,  5 
R.  I.  104:  Apple,  v.  Apple,  1  Head,  348. 
308 


4 
CH.  XI.]  REVERSION.  §    389 

and  rights  which  the  tenant  of  an  estate  in  remainder  would 
have.  He  can  maintain  his  action  for  waste  against  stran- 
gers as  well  as  the  tenant  of  the  particular  estate,  and  has 
a  right  to  receive  rents  accruing  from  such  tenant;  and  so 
will  his  assignee,  if  the  rent  is  not  reserved  or  granted  away 
to  another.1  The  same  doctrine  of  merger  applies  if  the 
particular  estate  a.nd  the  reversion  become  united  in  the 
same  person.  And  if  the  tenant  of  the  particular  estate  is 
disseised,  it  will  have  no  more  effect  upon  the  reversion  than 
it  would  have  upon  a  remainder.  For  any  further  expla- 
nation of  the  rights  and  powers  of  reversioners,  reference 
may  be  had  to  the  chapter  on  Remainders.  The  subject  is 
there  presented  in  detail  as  to  remainder-men,  and  as  the 
rights  and  powers  of  remainder-men  and  reversioners  are 
identical,  it  requires  but  one  statement  of  them.2 

1  Co.  Lit.  143  a ;  2  Washb.  on  Real  Prop.  742-744 ;  Jesser  v.  Gifford,  4 
Burr.  2141 ;  Bartlett  v.  Perkins,  13  Me.  87;  Simpson  v.  Bowden,  33  Me.  549; 
Livingston  v.  Haywood,  11  Johns.  429;  Burden  v.  Thayer,  3  Mete.  76;  Wood 
v.  Griffin,  46  N.  H.  239 ;  Ripka  v.  Sergeant,  7  Watts  &  S.  9.  See  ante,  sects. 
180,  191,  192. 

2  See  post,  chap.  xii.  Apart  from  the  difference  in  the  manner,  in  which 
the  remainder  and  the  reversion  are  created,  Mr  .Williams  says :  "  A  remainder 
chiefly  differs  from  a  reversion  in  this,  —  that  between  the  owner  of  the  par- 
ticular estate  and  the  owner  of  the  remainder  (called  the  remainder-man)  no 
tenure  exists.  They  both  derive  their  estates  from  the  same  source,  the  grant 
of  the  owner  in  fee  simple ;  and  one  of  them  has  no  more  right  to  be  lord 
than  the  other."     Williams  on  Real  Prop.  250. 

309 


CHAPTER  XII. 

REMAINDERS. 

Section      I.   Of  remainders  in  general  and  herein  of  vested  re- 
mainders. 
II.    Contingent  remainders. 
III.   Estates  within  the  rule  in  Shelley's  Case. 

SECTION  I. 

OP  REMAINDERS  IN  GENERAL  AND  HEREIN  OF  VESTED  REMAINDERS. 

Section  396.  Nature  and  definition  of  remainders. 

397.  Kinds  of  remainders. 

898.  Successive  remainders. 

399.  Disposition  of  a  vested  remainder. 

400.  Relation  of  tenant  and  remainder-man. 

401.  Vested  and  contingent  remainders  further  distinguished  —  Un- 

certainty of  enjoyment. 

402.  Same  —  Remainder  to  a  class. 

403.  Same  —  After  the  happening  of  the  contingency. 

404.  Cross  remainders. 

§  396.  Nature  and  definition  of  remainders. — It  will 
have  been  already  observed  from  the  preceding  pages,  that 
at  common  law  the  only  mode  of  transferring  freehold  es- 
tates in  possession  was  by  a  certain  ceremony  known  as 
livery  of  seisin,  and  that  there  could  be  but  one  actual  seisin, 
which  always  accompanied  the  freehold  estate  in  possession.1 
The  livery  of  seisin  being  a  manual  delivery  of  possession, 
and  the  title  passing  in  prcesenti  by  virtue  of  such  delivery, 
it  is  but  a  natural  consequence  that,  according  to  the  com- 
mon law,  no  freehold  estate  can  be  created  to  commence  in 
futuro,  conveying  apresent  title  to  the  same.  We  have  seen, 
though,  in  the  preceding  chapter  on  Reversions,  that  an  es- 

1  See  ante,  sect.  24. 

310 


CH.  XII.]  REMAINDERS.  §    396 

tate  in  possession  less  than  a  fee  may  be  granted,  leaving  a 
reversion  in  the  grantor,  which  he  could  subsequently  assign 
by  deed  of  grant.1  The  difficulty  experienced  at  common 
law  in  creating  future  estates  lay  in  the  fact,  that  they  had 
no  mode  of  conveyance  which  did  not  operate  by  transmu- 
tation of  possession.  It  was  necessary  that  immediate  pos- 
session should  accompany  the  creation  or  transfer  of  the 
title.2  In  fact,  livery  of  seisin  was  nothing  more  than  the 
delivery  of  the  possession  of  a  freehold.  If,  therefore,  a 
particular  estate  in  possession  had  already  been  granted,  or 
was  conveyed  at  the  same  time  with  the  future  estate,  the 
obstacle  in  the  way  of  creating  the  latter  was  removed.  If 
the  particular  estate  was  granted  by  a  prior  deed,  the  future 
estate  was  a  reversion  in  the  grantor  which  could  afterward 
be  conveyed  by  grant.  But  if  it  was  granted  at  the  same 
time  as  the  future  estate,  and  by  the  same  deed,  the  future 
estate  was  called  a  remainder.  A  remainder  is,  therefore,  a 
future  estate  in  lands,  which  is  preceded  and  supported  by 
a  particular  estate  in  possession,  which  takes  effect  in  pos- 
session immediately  upon  the  determination  of  the  prior  es- 
tate, and  which  is  created  at  the  same  time  and  by  the  same 
conveyance.3  It  follows,  therefore,  from  this  definition, 
that  a  remainder  can  only  be  acquired  by  purchase ;  it  never 
vests  by  descent.4  Nor  can  a  remainder  be  supported  by  an 
estate  which  is  created  by  operation  of  law.     The  future 

1  See  ante,  sect.  386. 

2  See  post,  sects.  769,  770,  771 ;  2  Washb.  on  Real  Prop.  536,  538,  539 ; 
Co.  Lit,  217  a. 

3  2  Washb.  on  Real  Prop.  539;  2  Bla.  Com.  163;  Co.  Lit.  143.  See  also 
Doe  v.  Considine,  6  "Wall.  474;  Brown  v.  Lawrence,  3  Cush.  390;  Phelps  v. 
Phelps,  17  Md.  134;  Booth  v.  Terrell,  16  Ga.  20. 

*  Dennett  v.  Dennett,  40  N.  H.  504;  see  Langdon  v.  Strong,  2  Vt.  254. 
In  the  same  manner,  there  must  be  a  conve)-ance  of  the  prior  particular 
estate.  A  man  cannot  grant  a  remainder,  reserving  to  himself  a  prior  estate 
for  life.  The  grant,  if  it  took  effect  at  all,  would  create  in  the  grantee  a 
springing  use  and  not  a  remainder.  Bissell  v.  Grant,  35  Conn.  297.  See  also 
post,  sect,  on  Springing  Uses,  Chapter  XIII. 

311 


§     397  REMAINDERS.  [PART    II. 

estate,  which  vests  in  the  heirs  upon  the  determination  of 
the  widow's  dower,  or  the  husband's  curtesy,  is  not  a  tech- 
nical remainder,  but  a  reversion.1  If  the  future  estate  does 
not  take  effect  in  possession  immediately  upon  the  expira- 
tion of  the  prior  or  particular  estate  (the  prior  estate  is 
called  particular,  derived  from  the  latin  particula,  part  or 
parcel),  it  is  not  a  remainder,  and  if  it  cannot  take  effeet 
a»  an  assigned  reversion,  a  future  use  or  an  executory  de- 
vise —  which  will  be  explained  hereafter2  —  it  will  be  void, 
and  the  conveyance  will  fail.3  But  the  refusal  of  a  devisee 
to  accept  a  particular  estate  will  not  defeat  the  devise  of  the 
remainder-man.  The  remainder-man  would  in  such  a  case 
take  from  the  death  of  the  testator,  the  devise  of  the  par- 
ticular estate  being  treated  as  having  lapsed.  Nor  will  the 
disaffirmance  by  an  infant  tenant  for  life  have  any  effect 
upon  the  validity  of  the  remainder.  But  if  the  particular 
estate  is  void,  through  some  quality  annexed  to  the  estate 
in  its  inception  as,  by  entry  of  the  grantor  for  condition 
broken,  the  remainder  will  also  fail.4 

§  397.  Kinds  of  remainders. — Remainders  are  divided 
into  two  classes,  vested  and  contingent.     A  vested  remainder 

1  Geer  v.  Hamblin,  1  Me.  54;  Cook  v.  Hammond,  4  Mason,  485;  Rey- 
nolds v.  Reynolds,  5  Paige,  167  ;  Saffordv.  Safford,  7  Paige  Ch.  259;  Robinson 
v.  Miller,  2  B.  Mon.  288;  Elwood  v.  Klock,  13  Barb.  50;  Hitchens  v. 
Hitchens,  2  Vern.  405;  1  Cruise  Dig.  164;  4  Kent's  Com.  65;  Co.  Lit.  31  a. 
See  ante,  sect.  385. 

2  See  post,  sects,  on  Contingent,  Springing  and  Shifting  Uses  in  Chapter 
XIII. 

3  2  Washb.  on  Real  Prop.  540;  1  Prest.  Est.  217;  Williams  on  Real  Prop. 
249-251 ;  Wilkes  v.  Lion,  2  Cow.  333. 

*  2  Washb.  on  Real  Prop.  555 ;  Co.  Lit.  298  a ;  Thompson  v.  Leach,  2 
Salk.  576;  Prescott  v.  Prescott,  7  Mete.  141;  Macknet  v.  Macknet,  24  N.  J. 
Eq.  277;  Lawrence  v.  Hebbard,  2  Bradf.  250;  Goodall  ».  McLean,  2  Bradf. 
306;  Yeaton  v.  Roberts,  28  N.  H.  459;  Augustus  v.  Seabolt,  3  Mete.  161. 
But  the  statement  in  the  text,  that  the  entry  of  the  grantor,  for  the  breach  of 
a  condition  annexed  to  the  particular  estate,  would  defeat  the  remainder,  ap- 
plies only  to  common-law  remainders.  A  limitation  to  take  effect  upon  the 
breach  of  a  condition  may  be  valid  as  an  executory  devise  or  as  a  shifting  use. 
See  ante,  sect.  281,  &nd  post,  sects.  418,536,  537. 

312 


CH.  XII.]  REMAINDERS.  §    397 

is  a  present  vested  right  to  the  future  enjoyment  of  the 
land.  In  a  vested  remainder  only  the  possession  is  post- 
poned. It  is,  therefore,  a  vested  and  executory  estate.1  A 
contingent  remainder  is  one  in  which  both  the  title  and  the 
possession  are  postponed.  The  vesting  of  the  title  depends 
upon  the  happening  of  an  uncertain  event  which  may  not 
happen  at  all,  or  at  a  time  subsequent  to  the  determination 
of  the  particular  estate.  The  possession  depends  upon  the 
vesting  of  the  title,  and  as  the  estate  must  take  effect  in 
possession  immediately  upon  the  expiration  of  the  particular 
estate,  it  will  fail  if  the  contingency  does  not  occur  before 
that  event.2     And  at  common  law  a  remainder  to  a  child 

1  Croxall  v.  Shererd,  5  Wall.  288;  Doe  v.  Considine,_6  Wall.  474;  Brown 
f.  Lawrence,  3  Cush.  390;  Blanchard  v.  Blanchard,  1  Allen,  227;  Hill  v. 
Baron,  106  Mass.  578 ;  Leslie  v.  Marshall,  31  Barb.  564 ;  Moore  v.  Lyons,  25 
Wend.  119;  Gourley  v.  Woodbury,  42  Vt.  395.  Mr.  Preston's  definition  is: 
"It  is  the  present  capacity  of  taking  effect  in  possession,  if  the  possession 
were  fallen."     1  Prest.  Est.  70. 

2  2  Washb.  on  Real  Prop.  542 ;  Doe  v.  Morgan,  3  T.  R.  764 ;  Purefoy  v. 
Rogers,  2  Lev.  39;  Hawley  v.  James,  5  Paige  Ch.  466;  Moore  v.  Lyons,  25 
Wend.  144;  Williamson  v.  Field,  2  Sandf.  Ch.  553;  Price  v.  Sisson,  13  N.  J. 
L.  176.  There  have  been  various  tests  suggested  for  determining,  whether  in 
a  given  case  a  future  estate  is  a  vested  or  contingent  remainder,  and  the  more 
common  one  is  that  given  by  Mr.  Fearne,  yiz. :  "The  present  capacity  of 
taking  effect  in  possession,  if  the  possession  were  to  become  vacant,  *  *  * 
distinguishes  a  vested  remainder  from  one  that  is  contingent."  Fearne 
Cont.  Rem.  216;  2  Cruise  Dig.  200.  This  was  a  reliable  test,  if  it  was  under- 
stood that  it  mattered  not  in  what  way  or  by  what  means  the  prior  particular 
estate  is  determined,  whether  by  forfeiture,  merger,  or  disseisin,  or  by  the 
natural  termination  of  the  estate.  But  since  at  the  present  day,  in  a  number 
of  the  States,  the  defeat  of  the  prior  estate  in  any  other  way,  except  by  this 
natural  termination,  will  not  avoid  the  contingent  remainder  depending  upon 
it,  this  test  is  no  longer  reliable,  and  another  must  be  found.  The  following 
is  suggested  as  a  reliable  test,  viz. :  the  present  capacity  to  convey  an  abso- 
lute title  to  the  remainder.  This  test  would,  however,  give  rise  to  a  quali- 
fication, where  the  remainder  is  to  a  class,  and  some  of  the  class  are  not  yet 
in  esse.  The  remainder,  so  far  as  those  in  esse  are  concerned,  is  held  to  be 
vested  (see  post,  sect.  402),  while  such  remainder-men  could  not  convey  an 
absolute  title,  thus  excluding  the  afterborn  members  of  the  class  from  their 
right  in  the  remainder,  although  they  can  convey  an  absolute  title  to  their- 
own  interest  in  it. 

313 


xj    397  REMAINDERS.  [PART    II. 

en  ventre  sa  mere  would  be  defeated  if  it  was  not  born  before 
the  termination  of  the  particular  estate.  This  rule,  how- 
ever, has  now  in  most  of  the  States  been  changed  by  stat- 
ute, and  an  unborn  child  after  conception  is  considered  as 
sufficiently  a  living  being,  in  order  to  take  an  estate.1  A 
contingent  remainder  is  both  contingent  and  executory. 
As  long  as  there  is  some  one  in  being  who  can  take  and 
hold  the  actual  seisin,  no  violation  of  the  common-law  rule, 
which  requires  an  ascertained  tenant  of  the  praecipe,  will  be 
committed,  whether  the  title  to  the  remainder  vests  imme- 
diately or  whether  its  vesting  is  postponed  to  some  future 
time.  In  this  way  is  the  validity  of  a  contingent  remainder 
explained.  The  contingency  may  be  the  birth  of  the  per- 
son who  is  to  take,  as  well  as  any  other  uncertainty.  But 
for  the  support  of  a  contingent  remainder  the  particular  es- 
tate must  be  a  freehold ;  while  in  the  case  of  a  vested  re- 
mainder the  particular  estate  may  be  only  a  term  of  years. 
The  reason  for  this  difference  lies  in  the  fact  that  the  tenant 
for  years  has  only  a  chattel  interest,  the  possession  of  which 
he  acquires  as  a  quasi-bailee  of  the  tenant  in  reversion.  He 
does  not  take,  and  cannot  hold,  the  actual  seisin  in  his  own 
right.  If  the  remainder  is  contingent  there  is  no  definitely 
ascertained  person  who  can  take  the  legal  seisin,  which,  to- 
gether with  the  actual  possession  of  the  tenant  for  years,  as 
his  bailee,  will  constitute  the  complete  and  lawful  seisin  to 
the  land.'2     An  apparent  exception  to  this  rule,  requiring 

1  Reeve  v.  Long,  1  Salk.  227 ;  4  Kent's  Com.  249.  Statutes,  changing  the 
common  law  in  this  respect,  are  to  be  found  in  Arkansas,  California, 
Georgia,  Maryland,  Massachusetts,  Missouri,  New  York,  Ohio,  Virginia  and 
Wisconsin.  2  Washb.  on  Real  Prop.  595;  Crisfield  v.  Storr,  36  Md.  129; 
11  Am.  Rep.  480. 

2  Co.  Lit.  143  a ;  Fearne  Cont.  Rem.  285 ;  2  Washb.  on  Real  Prop.  538, 
543;  Williams  on  Real  Prop.  252;  Doe  v.  Considine,  6  Wall.  474;  Brodie  v. 
Stephens,  2  Johns.  289;  Corbet  v.  Stone,  T.  Raym.  151;  2  Bla.  Com.  171. 
In  New  York,  Michigan,  Wisconsin,  Minnesota,  it  is  provided  by  statute  that 
a  contingent  remainder  may  be  limited  to  take  effect  at  the  termination  of  an 
estate  for  years.     2  Washb.  on  Real  Prop.  694,  595.     And  in  very  many  of  the 

314 


CH.  XII.]  REMAINDERS.  §    398 

the  particular  estate  to  be  a  freehold,  is  met  with  in  limita- 
tions like  the  following:  An  estate  is  given  to  A.  for  eighty 
years,  if  he  shall  so  long  live,  with  a  contingent  remainder 
at  his  death.  This  has  been  held  to  be  a  good  contingent 
remainder,  since  it  is  so  extremely  unlikely  that  A.  will  live 
out  the  term  that  it  may  be  considered  as  practically  an  es- 
tate for  life.  No  particular  number  of  years  is  required  to 
support  this  kind  of  limitation,  and  it  is  apprehended  that 
the  required  number  would  vary  in  each  case  according  to 
the  chances  of  life  of  the  tenant  of  the  particular  estate,  a 
greater  number  being  required  if  the  tenant  of  the  particu- 
lar estate  is  a  young  person  than  if  he  is  old.1  Any  partic- 
ular estate  for  years  is  sufficient  if  the  contingent  remainder 
is  not  a  freehold.  In  that  case  the  seisin  is  still  in  the 
grantor.2  But  the  particular  estate  must  in  no  case  be  less 
than  an  estate  for  years.  A  tenancy  at  will,  at  sufferance, 
or  from  year  to  year,  will  not  support  a  remainder ;  such 
estates  are  too  uncertain  as  to  their  duration. 

§  398.  Successive  remaindei*s. — As  long  as  the  entire 
fee  is  not  granted  away,  there  may  be  any  number  of  estates 
limited  in  remainder,  following  one  after  another,  provided 
they  are  so  granted  that  one  will  vest  in  possession  imme- 
diately upon  the  termination  of  the  preceding  remainder. 
If  any  time  be  allowed  to  elapse  between  their  vesting  in 
possession,  the  estates  cannot  take  effect  as  remainders. 
Thus  the  conveyance  may  be  to  A.  for  life  or  for  years,  to 
B.  for  life  or  years,  to  C,  and  so  on  indefinitely,  provided 

States  terms  of  years  of  long  duration  are  now  declared  by  statute  to  have  all 
the  properties  of  a  freehold  estate.     1  Washb.  on  Keal  Prop.  403. 

1  2  Cruise  Dig.  243;  2  Washb.  on  Real  Prop.  585;  Napper  v.  Sanders, 
Hutt.  118;  Lethieullier  v.  Tracy,  Amb.  204;  s.  c,  3  Atk.  774;  Doe  v.  Ford, 
2  E.  &  B.  970 ;  Weale  v.  Lower,  Pollexf.  67 ;  Fearne  Cont.  Rem.  20-22 ;  1 
Prest.  Est.  81. 

2  2  Cruise  Dig.  244;  Fearne  Cont.  Rem.  285 ;  Corbet  v.  Stone,  T.  Raym. 
161 ;  2  Washb.  on  Real  Prop.  585,  586. 

315 


§     oVS  REMAINDERS.  [PART    IK 

no  one  is  given  the  fee  in  remainder.1  As  soon,  however, 
as  the  fee  is  assigned  —  there  being  nothing  in  the  nature 
of  an  estate  left  in  the  grantor  —  he  can  create  no  more  re- 
mainders. It  is,  therefore,  a  cardinal  rule  that  no  remain- 
der can  be  limited  after  a  fee:  or,  in  other  words,  where 
there  is  no  reversion  there  can  be  no  remainder.2  And  this 
is  true,  even  though  the  fee  be  base  or  qualified,  as  in  the 
case  of  a  fee  upon  condition.     There  is  left  in  the  grantor 

1  2  Washb.  on  Real  Prop.  555. 

2  1  Eq.  Cas.  Abr.  185;  2  Cruise  Dig.  203;  Att'y-Gen.  v.  Hall,  Fitzg.  314; 
Ide  v.  Ide,  5  Mass.  500;  McLean  v.  McDonald,  2  Barb.  534;  Jackson  v.  De- 
Lancy,  13  Johns.  557;  Bowman  v.  Lobe,  14  Rich.  Eq.  271.     But  such  a  limi- 
tation could  take  effect  as  an  executory  devise,  if  it  appeared  in  a  will.     Doe 
v.  Glover,  1  C.  B.  448;  Nightingale  v.  Burrell,  15  Pick.  104,  111 ;  Andrews  i- 
Rove,  12  Rich.  544;  Marks  t>.  Marks,  10  Mod.  423;  Purefoy  v.  Rogers,  2  "Wms. 
Saund.  388  a,  note;  Hatfield  ».  Sueden,  42  Barb.  65;   s.  c,  54  N.  T.  285; 
Brightman  v.  Brightman,  100  Mass.  238.     But  if  the  first  devisee  has  an  abso- 
lute power  of  disposal,  and  the  limitation  over  is  to  operate  only  apon  what  is 
left  at  his   death,  the  limitation  cannot  take  effect  either  as  a  contingent 
remainder  or  as  an  executory  devise.    Ide  v.  Ide,  5  Mass.  500;  Ramsdell  »„ 
Ramsdell,  21  Me.  288;  Jones  v.  Bacon,  68  Me.  34;  28  Am.  Rep.  1 ;  Smith  v. 
Bell,  6  Pet.  68;  Sears  v.  Russell,  8  Gray,  100;  Burbank  v.  Whitney,  24  Pick. 
146;  Hale  v.  Marsh,   100  Mass.  468;  Jackson  v.  Bull,  10  Johns.  19;  Jackson 
v.  Robins,  15  Johns.  169 ;  s.  c,  16  Johns.  568 ;  McKenzie's  Appeal,  41  Conn. 
607;   19  Am.  Rep.  525;    Newland    v.  Newland,  1   Jones  L.  463;    McRee's 
Adm'rs.  v.  Means,   34  Ala.  349;   Norris  v.  Hensley,  27  Cal.  439;  Flinn  v. 
Davis,  18  Ala.  132 ;  Doe  v.  Stevenson,  1  C.  B.  448 ;  Bourn  v.  Gibbs,  1  Russ.  & 
M.  615;  Rona  v.  Meier,  47  Iowa,  607  ;  29  Am.  Rep.  493.     A  careful  analysis  of 
these  cases  will,  however,  reveal  the  fact  that  the  first  limitation   has  been  en- 
larged into  a  fee,  under  the  operation  of  the  rule  in  the  law  of  powers  (see  post. 
Chapter  XV.,  on  Powers),  that  an  unlimited   power  of  disposal  annexed   to  a 
devise  general  of  the  estate  without  words  of  limitation,  will  enlarge  the  estate 
devised  into  a  fee,  or  an  estate  in  fee  is  expressly  given,  and  in  either  case  the 
limitation  over  is  precatory  instead  of  being  mandatory.     "Where  the  prior  limi- 
tation is  expressly  for  life,  or  the  limitation  over  is  explicit  and  mandatory,  not 
in  the  nature  of  a  request,  that  the  devisee  inprozsenti  shall  leave  what  he  has 
not  disposed  of  to  the  persons,  it  will  not  only  be  a  good  limitation  over,  but,  if 
the  prior  limitation  is  an  estate  for  life  or  any  other  estate  less  than  a  fee,  it 
will  be  a  vested  remainder.     Gibbins  v.  Shepard,  125  Mass.  541 ;  Burleigh  v. 
Clough,  52  N.  H.  267  ;  13  Am.  Rep.  23 ;  Mandlebaum  v.  McDonnell,  29  Mich. 
78;  18  Am.  Rep.  61.     In   Indiana,  Michigan,   Minnesota,  and  "Wisconsin,  by 
statute,  a  remainder  can  be  limited  to  take  effect  after  a  fee  or  by  abridging 
the  preceding  estate.     2  "Washb.  on  Real  Prop.  54. 

316 


<CH.  XII.]  REMAINDERS.  §    399 

after  such  an  estate  only  a  possibility  of  reverter,  which  can- 
not be  assigned,  either  as  a  reversion  or  as  a  remainder.1 
But  where  a  remainder  is  given  to  trustees  and  their  heirs, 
since  the  duration  of  the  trustee's  estate  is  always  limited 
by  the  requirements  and  necessities  of  the  trust,  if  the  per- 
formance of  the  trust  does  not  require  a  fee,  and  the  estate 
is  therefore  determinable,  a  remainder  may  be  limited  to 
take  effect  after  the  determination  of  the  trust-estate. 
This  constitutes  an  exception  to  the  general  rule,  and  is 
only  applicable  to  remainders  in  trust.2  Estates  are  some- 
times created  to  take  effect  after,  or  in  derogation  of,  the 
preceding  estate  in  fee,  but  they  are  not  common-law  re- 
mainders. At  common  law  such  an  estate  is  impossible ; 
they  are  called  conditional  limitations,  and  operate  under 
the  Statute  of  Uses  as  a  shifting  use,  or  under  the  Statute 
of  Wills  as  an  executory  devise.3  So  also  was  it  impossible 
to  create  a  remainder  after  a  fee  conditional  at  common 
law.  But  wherever  that  estate  has  been  converted  into  a 
fee  tail,  a  remainder  is  possible,  as  has  been  explained  in 
the  chapter  on  Reversions.4 

§  399.  Disposition  of  a  vested  remainder.  —  A  vested 
remainder  is  capable  of  alienation  by   any  mode  of  con- 

1  2  Washb.  on  Real  Prop.  540,  541;  Doe  v.  Selby,  2  B.  &  C.  930;  Willion 
».  Berkley,  Plowd.  235 ;  Seymour's  Case,   10  Rep.  97 ;  Wimple  v.  Fonda,  2 

Johns.  288;  Buist  v.  Dawes,  4  Strobh.  Eq  37. 

2  Lethieullier  v.  Tracy,  3  Atk.  774.     See  post,  sect.  IV,  Chapter  XHL 

3  2  Washb.  on  Real  Prop.  544,  545 ;  1  Prest.  Est.  91 ;  Cogan  v.  Cogan,  Cro. 
Eliz.  360;  Proprietors  Brattle  Sq.  Church  v.  Grant,  3  Grav,  149;  Horton  v. 
Sledge,  29  Ala.  495.     See  post,  Chapter  XIII,  Sect.  Ill,  and  Chapter  XIV. 

*  2  Washb.  on  Real  Prop.  546;  Wilkes  v.  Lion,  2  Cow.  393;  Hall  v.  Priest, 
6  Gray,  18.  The  remainder  after  an  estate  tail  was  liable  to  be  defeated  by 
the  common  recovery,  instituted  by  the  tenant  in  tail  for  the  purpose  of  cut- 
ting off  the  entail.  Williams  on  Real  Prop.  253;  1  Spence  Eq.  Jur.  144;  2 
Prest.  Est.  460;  Page  v.  Hay  ward,  2  Salk.  670.  The  remainder  after  an  estate 
tail  has  this  further  peculiarity,  that  the  estate  tail  will  not  merge  in  it,  5f  the 
two  should  come  together  in  the  tenant  in  tail.  Wiscot's  Case,  2  Rep.  61; 
Roe  v.  Baldwere,  5  T.  R.  110;  Poole  v.  Morris,  29  Ga.  374. 

317 


§    400  REMAINDERS.  [PART    II. 

veyance  which  does  not  require  livery  of  seisin,  and  even 
with  livery,  where  the  particular  estate  is  not  a  freehold, 
and  the  consent  of  the  tenant  to  entry  upon  the  land  for 
that  purpose  is  obtained.  It  may  be  devised,  or  assigned 
in  whole,  or  carved  up  into  a  number  of  smaller  estates, 
and  may  be  conveyed  upon  trusts,  or  made  to  vest  upon 
some  future  contingency,  provided  no  estate  is  thereby 
made  to  commence  infuturo,  without  a  preceding  estate  to- 
support  it.1 

§  400.  Relation  of  tenant  and  remainder-man.  —  There 
is  no  tenure  existing  between  the  remainder-man  and  the 
tenant  of  the  particular  estate.  The  tenant  can  have  no 
claim  on  the  latter  for  any  improvements  made  by  him.  If 
the  improvement  is  not  of  such  a  nature  as  to  give  him  the 
right  of  removal  under  the  law  of  fixtures,  it  becomes  a  part 
of  the  soil,  and  passes  with  it  to  the  remainder-man  upon 
the  termination  of  the  particular  estate.-  The  tenant  can- 
not do  anything  to  defeat  a  vested  remainder;  a  disseisin 
of  the  tenant  affects  the  remainder  in  no  manner.  Nor  can 
the  possession  of  the  tenant  be  deemed  adverse  to  the  re- 
mainder-man, either  for  the  purpose  of  preventing  the  latter 

1  2  Washb.  on  Eeal  Prop.  553 ;  1  Prest.  Est.  75 ;  Pearce  v.  Savage,  45  Me. 
101;  Blanchard  v.  Brooks,  12  Pick.  47;  Gliddon  v.  Blodgett,  38  N.  H.  74; 
Jackson  v.  Sublett,  10  B.  Mon.  467;  Fearne  Cont.  Rem.  216;  Williams  on 
Real  Prop.  252.  In  Alabama,  New  York,  Michigan,  Wisconsin,  Minnesota, 
Indiana,  Iowa,  Mississippi,  Missouri,  Texas,  Virginia,  Kentucky,  Illinois,  a 
legal  estate  may  be  created  by  deed  to  commence  in  the  future,  without  a 
preceding  estate  to  support  it.  2  Washb.  on  Real  Prop.  592,  593.  In  those 
States,  therefore,  a  future  estate  may  be  disposed  of  in  such  a  manner,  that  it 
is  to  vest  in  the  purchaser  at  some  future  day,  and  in  the  meanwhile  remain 
vested  in  the  original  remainder-man. 

2  2  Washb.  on  Real  Prop.  554;  Elwes  v.  Mawe,  3  East,  38;  s.  c,  2  Smith's 
Ld.  Cas.  212;  Madigan  v.  McCarthy,  10S  Mass.  376;  11  Am.  Rep.  371;  Ford 
o.  Cobb,  20  N.  Y.  344;  Tifft  v.  iiorton,  53  N.  Y.  377;  13  Am.  Rep.  537: 
Thurston  v.  Dickinson,  2  Rich.  Eq.  317  ;  see  ante,  sect.  6.  Nor  can  the  tenant 
of  the  particular  estate  enter  into  any  agreement  in  respect  to  the  property, 
which  will  bind  the  remainder-man.     Hill  v.  Roderick,  4  Watts  &  S.  221. 

318 


CH.  XII.]  REMAINDERS.  §    401 

from  conveying  his  interest,  or  with  a  view  to  defeat  it  un- 
der the  Statute  of  Limitations,  unless  the  possession  be  con- 
tinued after  the  termination  of  the  particular  estate.  The 
Statute  of  Limitations  does  not  begin  to  run,  until  the  re- 
mainder takes  effect  in  possession.1  And  if  the  tenant  or 
a  stranger  commits  waste  upon  the  land,  or  does  any  injury 
to  the  inheritance,  the  remainder-man  has  his  own  action 
for  damages  against  the  wrong-doer.2 

§  401.  Vested  and  contingent  remainders  further  dis- 
tinguished—  Uncertainty  of  enjoyment.  — No  uncertainty 
of  enjoyment  will  render  the  remainder  contingent.  The 
contingent  or  vested  character  of  the  remainder  is  only  de- 
termined by  the  uncertainty,  which  attends  the  vesting  of 
the  right  to  the  estate.3     But  sometimes  it  is  difficult  to  de- 

1  2  Wash,  on  Real  Prop.  555 ;  see  Grout  v.  Townsend,  2  Hill,  554. 

2  Chase  v.  Hazelton,  7  N.  H.  176;  Van  Deusen  v.  Young,  29  N.  Y.  9; 
Brown  v.  Bridges,  30  Iowa,  145.  But  no  one,  whose  reversionary  interest  is  a 
contingent  remainder  or  an  executory  devise,  can  maintain  a  legal  action  of 
waste  against  the  tenant  of  the  particular  estate,  although  his  interests  in  the 
estate  may  be  protected  by  injunction  from  destruction  by  the  waste  of  the 
particular  tenant.  Hunt  v.  Hall,  37  Me.  3G3.  And,  unless  changed  by  stat- 
ute, the  remainder-man  can  maintain  the  technical  action  of  waste,  only  when 
he  has  the  immediate  estate  in  remainder.  If  there  is  an  intermediate  estate 
in  remainder  between  him  and  the  tenant  of  the  particular  estate,  he  could 
only  maintain  an  action  in  the  case  on  the  nature  of  waste.  Williams  v.  Bol- 
ton. 3  P.  Wms.  298 ;  Co.  Lit.  218  b,  n.  122 ;  1  Washb.  on  Real  Prop.  154. 
But  the  distinction  between  trespass  and  case  lias  been  abolished  in  many  of 
the  States,  and  certainly  in  all  the  States  which  have  adopted  the  code  of 
New  York.  And  for  acts  of  waste  by  strangers  the  tenant  of  the  particular 
estate  may  be  held  liable  to  the  remainder-man  or  reversioner,  if  the  waste 
results  through  his  negligence  in  protecting  the  estate  from  the  trespasses  of 
strangers.  Co.  Lit.  54  a;  Attersol  v.  Stevens,  1  Taunt.  198;  Fay  v.  Brewer, 
3  Pick.  203 ;  Wood  v.  Griffin,  46  N.  H.  237 ;  Cook  v.  Champlain  Trans.  Co., 
1  Denio,  91 ;  Austin  v.  Hudson  R.  R.  Co.,  25  N.  Y.  341. 

3  "The  present  capacity  of  taking  effect  in  possession,  if  the  possession 
were  now  to  become  vacant,  and  not  the  certainty  that  the  possession  will  be- 
come vacant  before  the  estate  limited  in  remainder  determines,  universally 
distinguishes  a  vested  remainder  from  one  that  is  contingent."  Fearne  Cont. 
Rem.  216.    See  also  4  Kent's  Com.  202;    Croxall  v.  Shererd,  6  Wall.  288; 

319 


§    401  REMAINDERS.  [PART    II. 

termine  whether  the  contingency  refers  to  the  enjoyment  or 
to  the  vesting  of  the  title.  Thus,  in  a  devise  to  A.  and  B. 
for  eight  years,  remainder  to  the  testator's  executors  until 
H.  B.  arrives  at  twenty-one  years,  and  when  he  should  come 
of  age,  then  that  he  should  enjoy  the  same  to  him  and  his 
heirs  forever.  H.  B.  died  during  minority.  It  was  held 
that  only  the  enjoyment  was  postponed  to  his  arrival  at  ma- 
jority, and  that  the  remainder  was  vested  and  descended  to 
his  heirs.1  Not  only  will  the  mere  uncertainty  of  enjoy- 
ment not  make  the  remainder  contingent,  but  the  remainder 
will  be  a  good  vested  one,  although  it  may  be  absolutely 
impossible  for  the  remainder-man  ever  to  enjoy  the  posses- 
sion of  it.  Thus  a  grant  to  A.  for  one  thousand  years,  re- 
mainder to  B.  for  life;  B.  is  sure  to  die  before  the  natural 
expiration  of  A.'s  estate,  but  the  remainder,  nevertheless,  is 
good,  although  it  ends  with  B.'s  death.  So  also  would  this 
be  the  case  where  the  grant  was  to  A.  for  life,  remainder  to 
B.  during  the  life  of  A.  B.  could  only  enjoy  his  remainder 
in  the  event  that  A.'s  estate  was  destroyed  by  forfeiture, 
escheat  or  merger,  and  it  may  not  be  defeated  at  all.  Nev- 
ertheless, B.'s  estate  is  a  vested  remainder.  And  if  the  re- 
mainder to  B.  were  in  fee,  although  he  would  never  be  able 
to  enjoy  it,  he  could  convey  it  to  others  or  devise  it,  and  if 
he  died  without  making  a  disposition  of  it,  it  would  descend 
to  his  heirs.2  But  wherever  the  title  vests  only  upon  the 
happening  of  a  future  contingency,  whatever  generally  may 
be  that  contingency  —  whether  it  be  the  birth  of  the  re- 

Pearce  v.  Savage,  45  Me.  101;  Brown  v.  Lawrence,  3  Cush.  390;  Williamson 
v.  Field,  2  Sandf.  Ch.  533 ;  Allen  v.  Mayfield,  20  Ind.  293  ;  Marshall  v.  King, 
24  Miss.  90. 

1  Boraston's  Case,  3  Rep.  19;  Manning's  Case,  8  Rep.  187  b;  Goodtitle  v. 
Whitby,  1  Burr.  233 ;  Tomlinson  v.  Dighton,  1  P.  Wms.  17 ;  Doe  v.  Lea,  3  T. 
R.  41.  See  also  Doe  v.  Moore,  14  East,  601 ;  Furness  v.  Fox,  1  Cush.  134; 
Blanchard  v.  Blanchard,  1  Allen,  223  ;  Manice  v.  Manice,  43  N.  Y.  380. 

2  2  Washb.  on  Real  Prop. 547;  Williams  on  Real  Prop.  252;  Feari.o  Cont. 
Rem.  216;  Parkhurst  v.  Smith,  Willes,  338;  Williamson  u.  Field,  2  Sandf. 
€h.  533;  Manderson  v.  Lukens,  23  Pa.  St.  31. 

320 


OH.  XII.]  REMAINDERS.  §    401 

mainder-man  or  some  collateral  event  —  the  remainder  is 
contingent,  and  there  is  no  present  vested  right.  And  it 
has  been  held  by  the  New  Hampshire  courts  that  a  grant  to 
A.  for  life,  remainder  after  his  death  to  B.,  would  make  the 
remainder  to  B.  contingent,  since  by  the  terms  of  the  con- 
veyance B.  was  only  to  take  the  estate  after  the  death  of  A., 
and  A.'s  estate  may  be  defeated  before  its  natural  termina- 
tion by  forfeiture,  or  merger  into  the  inheritance.1  But 
this  view  is  generally  rejected  by  the  authorities,  which 
hold  that  an  express  and  explicit  reference  to  such  a  con- 
tingency is  necessary  to  make  the  remainder  contingent.2 

1  Hall  v.  Nute,  38  N.  H.  422 ;  Hayes  p.  Tabor,  41  N.  H.  521.  In  Hall  v. 
Nute,  the  devise  was  to  Esther  Tuttle,  "to  hold  as  long  as  she  lives  a  natural 
life;  also  the  land  which  I  have  given  to  Esther  Tuttle  as  long  as  she  lives, 
after  her  decease  I  give  and  bequeath  the  same  to  my  son,  William  Tuttle,  as 
long  as  he  lives  a  natural  life,  and  no  longer;  and,  after  his  decease,  I  give 
and  bequeath  the  same  to  his  heirs  and  assigns."  The  court  say:  "William 
Tuttle,  under  the  devise,  could  not  take  the  estate  limited  to  him  in  remainder 
until  the  death  of  Esther  Tuttle.  If  her  estate  were  destroyed  during  life,  by 
forfeiture,  or  by  surrender  and  merger  in  the  inheritance,  the  remainder  lim- 
ited to  William  Tuttle  could  never  vest  in  possession,  though  he  might  survive 
his  mother,  because  there  would  be  no  particular  estate  to  support  the  remain- 
der." The  court  rest  their  opinion  on  the  authority  of  Doe  v.  Holmes,  2  W. 
Bl.  777,  in  which  the  devise  was  "  to  J.  S.  for  the  term  of  his  natural  life,  and 
nfter  his  decease  to  the  heirs  male  and  female  of  J.  L."  This  was  held  to  be  a 
contingent  remainder.  But  it  is  readily  observed  by  the  reader  that  the  contin- 
gency arose  from  the  uncertainty  of  the  remainder-men,  being  described  as 
the  heirs  of  a  living  person. 

2  4  Kent's  Com.  202;  Carter  v.  Hunt,  40  Barb.  89;  Williamson  v.  Field, 
2  Sandf.  Ch.  533;  Moore  v.  Lyons,  25  Wend.  144;  Price  v.  Sisson,  13  N.  J. 
168.  The  presumption  is  always  in  favor  of  the  remainder  being  vested,  and. 
especially  in  devises,  the  remainder  will  not  be  held  to  be  contingent,  unless  it 
is  the  apparent  intention  of  the  testator  that  the  remainder  shall  be  contin- 
gent. If  there  is  an  express  declaration  that  the  remainder  man  shall  only  take 
the  estate  at  the  natural  termination  of  the  particular  estate,  and  at  no  other 
time,  the  remainder  will  be  necessarily  contingent.  See  Sinton  v.  Boyd,  19 
Ohio  St.  57 ;  2  Am.  Rep.  369.  But  it  is  so  extremely  unlikely  that  the  testa- 
tor, in  a  will  like  the  New  Hampshire  case,  could  have  contemplated  the  pos- 
sible forfeiture  or  merger  of  the  particular  estate,  and  have  intended  that  the 
remainder-man  should  not  take  in  such  an  event;  that  such  a  construction 
would  be  maintained  only  upon  the  strongest  proof  that  such  was  the  inten- 
tion of  the  testator. 

2i  321 


§    402  REMAINDERS.  [PART    IT. 

Whenever  there  is  a  doubt  as  to  whether  a  remainder  is 
vested  or  contingent,  the  courts  always  incline  to  construe  it 
a  vested  estate.1  Thus,  in  a  devise  to  A.  for  life,  remainder 
to  the  surviving:  children  of  J.  S.,  there  being:  a  doubt  whether 
the  surviving  refers  to  the  death  of  the  testator,  or  of  A., 
and  the  latter  construction  would  make  the  remainder  con- 
tingent, the  court  held  that  it  referred  to  the  death  of  the 
testator,  and  that,  therefore,  the  remainder  was  vested.*2 
and  such  will  always  be  the  leaning  of  the  courts  where  the 
doubt  cannot  otherwise  be  removed. 

§402.  Same  —  Remainder  to  a  class. — The  general 
rule  is  that  a  remainder  is  contingent,  if  the  persons  who 
are  to  take  are  not  in  esse,  or  are  not  definitely  ascertained. 
But  where  the  remainder  is  limited  to  a  class,  some  of  whom 
are  not  in  esse,  the  remainder  has  repeatedly  been  held  to 
be  vested —  liable,  however,  to  open  and  let  in  those  who 
were  afterwards  born  during  the  continuance  of  the  partic- 
ular estate.  It  is  questionable  whether  a  simple  limitation 
in  remainder  to  a  class,  as  to  children,  will  open  to  let  in 
after-born  children,  if  there  are  some  in  esse  who  can  take. 

1  Doe  v.  Perryn,  3T.R,  484 ;  Doe  v.  Prigg,  8  B.  &  C.  231 ;  Duffield  v. 
Duffield,  1  Dow  &  C.  311;  Croxall  v.  Shererd,  5  Wall.  287;  Fay  v.  Sylves- 
ter, 2  Gray,  171 ;  Doe  v.  Provoost,  4  Johns.  61 ;  Moore  v.  Lyons,  25  Wend. 
119;  Den  v.  Demarest,  1  N.  J.  525. 

2  Doe  v.  Prigg,  8  B.  &  C.  231 ;  Smither  v.  Willock,  9  Ves.  233 ;  Eldridge  v. 
Eldridge,  9  Cush.  516;  Moore  v.  Lyons,  25  Wend.  119;  Chew's  App.,  37  Pa. 
St.  23.  And  very  often  a  remainder  will  be  construed  to  be  a  vested  estate 
upon  condition  subsequent,  liable  to  be  divested  by  the  happening  of  the  con- 
tingency rather  than  to  declare  it  a  contingent  remainder.  For  example,  a  de- 
vise was  made  to  E.  and  J.  for  their  lives  successively,  and.  after  the  death  of 
the  longest  liver  of  them,  to  A.  B.,  if  he  lived  to  attain  the  age  of  twenty-one 
years,  but  if  he  died  before  that  age,  then  over  to  C.  B.  It  was  held  that  the 
remainder  to  A.  B.  was  vested,  but  was  liable  to  be  defeated  by  the  death  of 
A.  B.  during  his  minority.  Bromfield  v.  Crowder,  1  Bos.  &  P.  N.  R.  313;  Doe 
,-.  Nowell,  1  M.  &  S.  327 ;  Blanchard  v.  Blanchard,  1  Allen,  226 ;  Abbott  v. 
Bradstreet,  3  Allen,  589 ;  Yeaton  v.  Roberts,  28  N.  H.  465 ;  Johnson  v.  Valen- 
tine, 4  Sandf.  36;  Maurice  v.  Maurice,  43  N.  Y.  380;  Ross  v.  Drake,  37  Pa.  St. 
373 ;  Bentley  v.  Long,  1  Strobh.  Eq.  43 ;  Phillips  v.  Phillips  19  Ga.  261.  Sefr 
contra,  Sinton  v.  Bovd,  19  Ohio  St.  51 ;  2  Am.  Rep.  369. 

322 


CH.  XII.]  REMAINDERS.  §    404 

But  if  there  is  any  circumstance  connected  with  the  grant 
or  devise  which  indicates  such  an  intention  on  the  part  of 
the  donor,  it  can  and  will  have  that  effect.  Thus,  in  a  de- 
vise to  A.  for  life,  and  at  her  death  to  her  children,  the  re- 
mainder would  be  vested  in  the  children  who  are  in  esse  at 
the  testator's  death,  and  it  will  open  and  let  in  the  children 
born  afterwards  during  the  life  of  A.,  or  during  the  con- 
tinuance of  her  estate.1 

§  403.  Same  —  After  the  happening  of  the  contin- 
gency.—  But  whatever  distinction  may  exist  between  a 
vested  and  a  contingent  remainder  at  their  creation,  they 
cease  to  be  distinguishable  when  the  uncertain  event  which 
rendered  the  remainder  contingent  has  happened.  After 
that,  the  contingent  remainder  is  vested,  and  has  all  the 
characteristics  which  it  would  have  had,  if  it  had  been  vested 
ab  initio.  But  the  vesting  of  a  contingent  remainder  must 
take  place  at  or  before  the  termination  of  the  particular 
estate;  if  it  occurs  afterwards,  the  remainder  fails,  and  the 
estate  reverts  to  the  grantor  or  the  testator's  heirs,  as  the 
case  may  be.2 

§  404.  Cross-remainders. — Where  particular  estates  are 
given  to  two  or  more  in  different  parcels  of  land,  or  in  the 

1  Due  v.  Prigg,  8  B.  &  C.  231 ;  Doe  v.  Perryn,  3  T.  R.  484 ;  Viner  v. 
Francis,  2  Cox,  190;  Doe  v.  Considine,  6  Wall.  475;  Dingley  v.  Dingley,  6 
Mass.  535;  Ballard  v.  Ballard,  18  Pick.  41 ;  Moore  v.  "Weaver,  16  Gray,  307; 
Worcester  v.  Worcester,  101  Mass.  132 ;  Yeaton  v.  Roberts,  28  N.  H.  466 ;  Doe 
v.  Provoost,  4  Johns.  61  ;  Jenkins  v.  Freyer,  4  Paige  Ch.  47  ;  Coursey  v.  Davis, 
46  Pa.  St.  25 ;  Carroll  v.  Hancock,  3  Jones  L.  471 ;  Myers  v.  Myers,  2  McCord 
Ch.  257 ;  Swinton  v.  Legare,  lb.  440.  Those  who  are  in  esse  do  not  take  an 
absolute  vested  estate.  They  cannot  bar  the  rights  of  those  who  are  unborn 
by  any  conveyance  they  may  make.  Their  estate  is  vested,  but  is  liable  to  bo 
defeated  pro  tanto  by  the  subsequent  birth  of  the  others.  And  so  strictly  are 
the  rights  of  the  unborn  guarded,  that  a  sale  by  the  guardian  of  the  children 
already  born  under  a  decree  of  court  was  held  not  to  affect  the  title  of  the 
after-born  children.  Adams  v.  Ross,  30  N.  J.  L.  613  ;  Graham  v.  Houghtalin, 
30  N.  J.  L.  558. 

2  1  Prcst.  Est.  484;  2  Washb.  on  Real  Prop.  556;  Doe  v.  Perryn,  3  T. 
R.  484;  Doe  v.  Considine,  6  Wall.  475;  Wendell  v.  Crandall,  1  Comst.  491. 

323 


§    404  REMAINDERS.  [PART   II. 

same  land  in  undivided  shares,  and  the  remainders  of  all 
the  estates  are  made  to  vest  in  the  survivor  or  survivors, 
the  future  estates  are  called  cross-remainders.  To  explain 
by  example,  an  estate  for  life  is  given  in  undivided  shares 
to  A.  and  B.,  remainder  to  the  survivor  and  his  heirs;  or 
to  A.  and  B.  in  tail,  remainder  of  A.'s  estate,  upon  failure 
of  issue,  to  B.,  in  fee,  and  remainder  of  B.'s  estate,  upon 
failure  of  issue,  to  A.1  In  some  cases,  as  in  the  first  ex- 
ample, the  limitations  resemble  a  joint-tenancy  in  point  of 
effect,  the  doctrine  of  survivorship  being  practically  pres- 
ent. But  in  the  case  of  cross-remainders,  the  remainders 
are  not  destroyed  by  a  partition,  nor  is  it  necessary  that 
they  should  have  present  in  them  the  four  unities  of  time, 
title,  estate  and  possession,  so  essential  in  the  creation  of  a 
joint-tenancy.  Although  it  is  usually  the  case,  yet  it  is  not 
necessary  that  the  particular  estates  should  be  undivided 
shares  in  the  same  land ;  and  if  they  are,  that  they  should 
be  equal  shares.  These  estates,  with  their  remainders,  may 
be  interests  in  altogether  different  parcels  of  land.  Cross- 
remainders  may  be  limited  by  deed  or  by  will,  and  in  a  will 
they  need  not  be  by  express  limitation;  they  may  arise  by 
implication.  But  in  a  deed,  in  conformity  with  the  general 
rule  of  construction  of  deeds,  they  can  only  be  created  b}r 
express  terms.2  They  may  be  vested  or  contingent,  and 
may  be  made  to  vest  at  any  time,  provided  the  contingency 
is  not  to  happen  after  the  termination  of  the  particular  es- 
tate.8    They  may   be   limited  between  two  or  any  greater 

1  2  Washb.  on  Real  Prop.  556,  557 ;  4  Cruise  Dig.  298 ;  1  Prest  Est.  94 ;  Co. 
Lit.  195  b,  Butler's  note,  1 ;  4  Kent's  Com.  201. 

*  Co.  Lit.  195  b,  note  82 ;  Watson  v.  Foxon,  2  East,  36 ;  Doe  v.  Worsley,  1 
East,  416;  Cole  v.  Livingston,  1  Vent.  221;  Cook  v.  Gerrard,  1  Wms.  Saunri. 
186  n;  Hall  v.  Priest,  6  Gray,  18;  Fenlej  v.  Johnson,  21  ild.  117. 

3  But  this  is  subject  to  the  qualification  to  be  hereafter  stated  and  ex- 
plained (see/x>sa!,  sect.  417),  that  a  contingent  remainder  must  not  be  too  re- 
mote.    The  same  rule   applies  to  cross-remainders.     Seaward   v.  Willock,  5 
East,  206 ;  Wood  v.  GrirBn,  46  N.  H.  235. 
324 


CH.  XII.]  REMAINDEES.  §    404 

number  of  persons  j1  and  they  should  be  so  created  that 
upon  the  vesting  of  a  remainder  it  should  carry,  not  only 
the  original  estate  of  the  tenant  of  the  particular  estate, 
but  also  all  other  remainders  which  may  have  vested  in  him 
and  been  transmitted  to  him  from  the  others,  whose  partic- 
ular estates  had  previously  terminated.2 

1  It  was  once  doubted  that  cross-remainders  could  be  limited  to  more  than 
two.  Gilbert  v.  Witty,  Cro.  Jac.  656 ;  Twisden  v.  Lock,  Ambl.  665 ;  Wright 
v.  Holford,  Cowp.  31.  But  it  has  now  been  definitely  settled  that  there  can  be 
more  than  two  cross-remaindermen.  Doe  v.  Webb,  1  Taunt.  233 ;  Watson  v. 
Foxon,  2  East,  36;  Doe  v.  Worsley,  1  East,  416;  Hall  v.  Priest,  6  Gray,  18; 
Fenby  v.  Johnson,  21  Md.  117. 

2  2  Washb.  on  Real  Prop.  557  ;  Co.  Lit.  195  b,  note  82.  In  fact,  this  is  the 
most  reliable  test  by  which  to  determine  the  existence  of  cross-remainders, 
viz.:  whether  the  entire  estate,  with  all  its  limitations,  passes  from  one  to 
another,  at  the  termination  of  the  particular  estate  and  death  of  each,  until 
the  whole  estate  vests  in  the  heirs  of  the  survivor.  Doe  v.  Webb,  1  Taunt. 
233 ;  Fenby  v.  Johnson,  21  Md.  117. 

325 


fp/^ 


SECTION  n. 

CONTINGENT   REMAINDERS. 

Section  411.  Nature  and  origin  of  contingent  remainders 

412.  Classes  of  contingent  remainders. 

413.  Vested  remainder  after  a  contingent. 

414.  Same  —  Such  limitations  in  wills. 

415.  Alternate  remainders  in  fee. 

416.  Restrictions  upon  the  nature  of  the  contingency  —  Its  legality. 

417.  Same  —  Remoteness. 

418.  Same  —  Abridging  the  particular  estate. 

419.  How  contingent  remainders  may  be  defeated. 

420.  Same  —  1.  By  disseissin  of  the  particular  tenant. 

421.  Same  —  2.  By  merger. 

422.  Same  — 3.  By  feoffment. 

423.  Same  —  4.  By  entry  of  condition  broken. 

424.  Trustees  to  preserve. 

§  411.  Xature  and  origin  of  contingent  remainders.  — 

It  has  been  contended,  with  much  show  of  reason,  that  the 
ancient  common  law  did  not  admit  of  the  creation  of  any 
but  vested  remainders.  And  until  the  reign  of  Henry  VI. 
no  case  appears  upon  record,  in  which  they  have  been  held 
to  be  valid  limitations.1  In  that  reign  it  was  held  that  in 
the  conveyance  to  A.  for  life,  remainder  to  the  heirs  of 
J.  S.,  the  remainder  was  a  good  limitation,  which  remained 
contingent  until  the  death  of  J.  S.,  and  was  defeated  if  he 
did  not  die  during  the  life  time  of  A.  The  heirs  of  J.  S. 
would  take  the  estate  in  fee  at  the  death  of  A.,  as  if  they 
had  been  heirs  of  A.2     It  was  also  involved  in  doubt,  in  early 

1  2  Washb.  on  Real  Prop.  560;  Williams  on  Real  Prop.  263.  The  earlier 
authorities,  on  the  contrary,  are  rather  opposed  to  such  a  conclusion.  Wil- 
liams on  Real  Prop.  264.  Mr.  Williams  says  that  the  reader  should  be  informed 
that  the  assertion  is  grounded  only  on  the  writer's  researches.  The  general 
opinion  appears  to  be  in  favor  of  the  antiquity  of  contingent  remainders  (p. 
263,  note  d),  citing  3d  Rep.  of  Real  Prop.  Comm'rs,  23. 

2  2  Washb.  on  Real  Prop.  560,  561;  2  Bla.  Com.  169-171;  Williams  on 
Real  Prop.  264. 

326 


CH.  XII.]  CONTINGENT    REMAINDERS.  §    411 

times,  what  became  of  the  fee  while  the  remainder  continued 
to  be  contingent.  Until  the  contingency  happened,  the  con- 
tingent remainder  was  deemed  a  mere  possibility  —  a  chance 
of  getting  an  estate,  rather  than  the  estate  itself.  It  was 
considered  an  executory  interest,  the  title  to  which  only 
vested  when  the  contingency  happened.  Some  of  the  older 
authorities  held  that  the  title  to  the  fee  remained,  to  use 
their  quaint  expressions,  in  nubibus,  in  gremio  legis,  etc. 
In  other  words,  the  title  is  kept  in  abeyance  while  the  re- 
mainder is  contingent.1  But  the  modern  authorities  are  in- 
clined to  hold  that  it  remains  in  the  grantor,  and  that  he  is 
not  divested  of  the  title  in  remainder  until  the  contingency 
arrives.2  In  conformity  with  the  older  view  of  the  nature 
of  a  contingent  remainder,  it  was  formerly  held  that  it  was 
not  capable  of  alienation,  nor  could  it  be  devised.3  But  it 
is  now  definitely  settled  that,  although  the  contingent  re- 
mainder can  only  be  considered  as  a  possibility,  or,  at  best, 
only  an  estate  in  expectancy,4  yet  there  is  a  sufficient  pres- 
ent right  to  it  upon  the  happening  of  the  contingency,  as  to 
be  capable  of  alienation  and  devise.  The  conveyance  of  a 
contingent  remainder  will  operate  as  an  estoppel  or  as  an 
assignment  in  equity,  unless  such  remainders  are  made 
alienable  by  statute.  It  is  still  the  rule  of  law,  in  the  ab- 
sence of  a  statute,  that  there  can  be  no  legal  conveyance  of 
a  contingent  remainder.5  But  it  was  always  possible  for  a 
contingent  remainder-man  to  release  to  one  in  possession. 

1  Williams  on  Real  Prop.  26G ;  Co.  Lit.  342  a;  1  Prest.  Est.  251;  2  Prest. 
Abst.  100-107. 

2  Williams  on  R3al  Prop.  266  ;  Co.  Lit.  191a,  Butler's  note,  78 ;  Fearne  Cont. 
Rem.  361 ;  Shapleigh  v.  Pilsbury,  1  Me.  280 ;  Rice  v.  Osgood,  9  Mass.  37. 
But  see  4  Kent's  Com.  259. 

3  2  Washb.  on  Real  Prop.  562 ;  Williams  on  Real  Prop.  268. 
*  2  Washb.  on  Real  Prop.  560;  1  Prest.  Est.  75. 

5  1  Prest.  Est.  76  ;  2  Cruise  Dig.  333  ;  Fearne  Cont.  Rem.  551 ;  Robertson 
v.  Wilson,  38  N.  H.  48;  Loringv.  Eliot,  16  Gray,  674;  Doe  v.  Oliver,  10  B.  & 
C.  181 ;  Roe  v.  Dawson,  3  Ld.  Cas.  Eq.  651 ;  Roe  v.  Jones,  1  H.  Bl.  33  ;  Roe 
v.  Griffiths,  1  W.  Bl.  606. 

327 


§    412  CONTINGENT   REMAINDERS.  [PART   II. 

The  contingent  remainder  also  descends  to  the  heirs  of  the  re- 
mainder-man upon  his  death  before  the  contingency,  provided 
the  contingency  does  not  arise  from  the  uncertainty  of  the 
person  who  is  to  take  the  remainder.1  Where  the  remain- 
der-man is  uncertain,  no  grant  or  devise  can  be  made  before 
the  happening  of  the  contingency  which  will  have  any  effect, 
either  in  law  or  equity.2 

§  412.  Classes  of  contingent  remainders.  —  Contingent 
remainders  may  be  divided  into  two  classes,  the  distinguish- 
ing element  being  the  character  of  the  event,  upon  the 
happening  of  which  is  made  to  depend  the  vesting  of  the 
remainder.  The  first  class,  according  to  this  classification, 
would  include  all  those  remainders  which  are  contingent, 
because  the  persons  who  are  to  take  are  not  ascertained,  or 
are  not  in  being.  Such  would  be  remainders  to  the  heirs 
of  a  living  person  or  to  an  unborn  child.  In  the  first  case 
the  remainder  is  contingent,  because  nemo  est  hceres  viventis; 
the  heirs  cannot  be  ascertained  until  the  death  of  the  ances- 
tor, and  the  remainder  will  become  vested  only  upon  the 
death  of  that  person.  In  the  second  case,  the  remainder  is 
contingent  until  the  child  is  born.3  If  the  remainder  is  to  a 
class,  as  to  children,  it  will  vest  in  the  first  child  born,  sub- 
ject to  be  opened  upon  the  birth  of  a  second  to  let  it  in,  and 
so  on.  If  the  particular  estate  terminated  after  the  birth 
of  the  first,  the  remainder  would  vest  completely  in  that 

1  1  Prest  Est.  76-89;  4  Kent's  Com.  262;  Williams  Real  Prop.  277  ;  Roe  v. 
Griffiths,  1  W.  Bl.  606;  Lam  pet's  case,  10  Rep.  48  a;  Marks  v.  Marks,  1 
Strange,  132. 

2  2  Washb.  on  Real  Prop.  562.  This  arose  from  the  practical  inability  of  a 
conveyance,  when  it  is  not  ascertained  who  is  the  remainder-man.  But  if  a 
certain  individual  made  a  conveyance  of  the  land  by  a  warranty  deed,  and  he 
subsequently  became  the  vested  remainder-man,  his  deed  would  certainly 
operate  by  way  of  an  estoppel  to  bar  him  of  any  claim  to  the  remainder,  as 
against  his  grantee. 

s  The  first  class,  according  to  this  classification,  corresponds  to  Mr.  Fearne's 
fourth  class.  Fearne  Cont.  Rem.  9;  Richardson  v.  "Wheatland,  7  Mete.  169; 
Moore  v.  Weaver,  16  Gray,  307  ;  Loring  v.  Eliot,  lb.  572. 

328 


CH.  XII.]  CONTINGENT   REMAINDERS.  §    412 

child,  free  from  the  claims  of  any  child  thereafter.1  The 
second  class  would  include  all  those  remainders  which  are 
made  to  vest  upon  the  happening  of  a  collateral  event,  and 
may  be  subdivided  into  those  cases,  where  that  event  is  sure 
to  happen,  but  it  is  uncertain  whether  it  will  happen  during 
the  continuance  of  the  particular  estate,  and  those,  in  which 
it  is  doubtful  whether  the  collateral  event  will  happen  at  all. 
Thus,  in  a  grant  to  A.  for  life,  remainder  to  B.  after  the 
death  of  C,  C.  is  sure  to  die,  but  it  remains  doubtful  whether 
he  will  die  during  the  lifetime  of  A.,  which  is  necessary  for 
the  vesting  of  the  remainder.  An  example  of  the  second 
subdivision  would  be  a  remainder  to  B.  upon  C.'s  return 
from  Rome  ;  C.'s  return  from  Rome  is  uncertain;  he  may 
die  there,  in  which  event  the  contingent  remainder  will 
never  vest  and  will  fail.2  To  these  may  be  added  a  third 
class,  in  which  the  event  is  not  collateral,  but  the  happening 
of  which  is  contingent,  and  not  only  causes  the  remainder  to 
vest,  but  also  constitutes  the  natural  termination  of  the  par- 
ticular estate.  For  example,  an  estate  to  A.  until  B.  re- 
turns from  Rome,  then  over  to  C.  —  since  B.  may  never 
return  —  the  remainder  is,  therefore,  contingent.  In  such 
cases  the  remainder  vests  only  at  the  time  when  it  is 
to  take  effect  in  possession.3  This  division  into  classes  has 
been  criticised  by  different  authorities,  and  has  been  de- 
clared to  involve  a  useless  complication  of  details  ;4  and  it  may 
be  that  the  only  natural  and  necessary  division  is  that  given 
by  Blackstone,  into  two,  viz. :   where  the  person  who  is  to 

1  Doe  v.  Considine,  6  Wall.  477;  Carver  v.  Jackson,  4  Pet.  90;  Olney  v. 
Hull,  21  Pick.  311 ;  Worcester  v.  Worcester,  101  Mass.  132 ;  Jenkins  v.  Freyer, 
4  Paige  Ch.  47 ;  Coursey  v.  Davis,  46  Pa.  8t.  25 ;  Adams  v.  Ross,  30  N.  J.  L 
613 ;  Swinton  v.  Legare,  2  McCord  Ch.  257.     See  ante,  sect.  402. 

2  Mr  Fearne  divides  these  cases  into  two  classes,  and  they  constitute  his 
second  and  third  classes.  Fearne  Cont.  Rem.  8  ;  2  Washb.  on  Real  Prop.  664, 
665. 

3  2  Washb.  on  Real  Prop.  563.  This  is  Mr.  Fearne's  first  class.  Fearne 
Cont.  Rem.  5. 

*  4  Kent's  Com.  208. 

329 


§    413  CONTINGENT    REMAINDERS.  [PART    II. 

take  is  dubious,  and  where  the  event  is  uncertain.1  But  the 
presentation  of  the  minuter  subdivisions  at  least  exhibits 
the  various  possible  forms  of  contingent  remainders  and  the 
different  contingencies  upon  which  they  may  be  made  to 
depend,  and  for  that  reason  the  above  classification  is  use- 
ful, if  not  necessary. 

§  413.  Vested  remainder  after  a  contingent.  —  Because 
the  first  of  two  or  more  remainders  is  contingent,  it  does 
not  necessarily  follow  that  the  others  must  be  contingent 
also.  The  ulterior  remainders  are  contingent  only  when 
the  contingency  is  made  to  apply  to  the  vesting  of  the  whole 
series  of  limitations.  But  they  may  be  so  limited  that  the 
contingency  refers  only  to  the  first  remainder,  and  the 
others  are  then  vested.  The  vesting  of  a  contingent  re- 
mainder in  such  a  case  only  postpones  the  enjoyment  of  the 
others,  and  its  failure  only  accelerates  their  time  of  enjoy- 
ment. Thus,  where  the  limitations  are  to  A.  for  life,  re- 
mainder to  his  first  and  other  sons  in  tail,  remainder  to  B. 
for  life,  remainder  to  his  first  and  other  sons  in  tail,  neither 

A.  nor  B.  had  sons  at  the  time.  The  successive  remainders 
to  their  sons  in  tail  were  contingent,  but  the  remainder  to 

B.  not  being  made  to  depend  upon  any  contingency  —  not 
even  the  vesting  of  the  remainder  to  A.'s  sons  in  tail  — was 
vested,  notwithstanding  the  contingency  of  the  preceding 
remainder.2  And  if  the  remainder  to  A.'s  son  in  tail  failed 
to  take  effect  because  A.  had  no  son,  the  remainder  to  B. 
would  take  effect  in  possession  upon  the  death  of  A.,  the 
failure  of  the  remainder  in  tail  only  having  the  effect  of 
-accelerating  the  time  of  enjo3'ment  by  B.  And  if  B.  had 
sons  before  A.,  the  remainder  to  them  in  like  manner  would 
at  once  become  vested,  although  the  remainder  to  A.'s  sons 

1  2  Bla.  Com.  169. 

2  Uvedall  v.  TTvedall,   1  Rolle   Abr.  119;  Lewis  v.  Waters,  6  East,  336; 
"Wright  v.  Stephens,  4  B.  &  Aid.  574 ;  Sims  v.  Conger,  39  Miss.  232. 

330 


CH.  XII.]  CONTINGENT    REMAINDERS.  §    413 

is  still  contingent.1  There  may  be  a  vested  remainder  after 
a  contingent,  even  where  the  contingency  refers  to  a  col- 
lateral event  instead  of  the  birth  or  uncertainty  of  the  per- 
son who  is  to  take,  provided  the  vesting  of  the  subsequent 
remainder  is  not  made  to  depend  upon  the  happening  of  the 
same  contingency.  Such  was  the  case  in  the  limitation  to 
A.  for  life,  remainder  to  B.  and  C.  for  eighty  years,  if  D. 
and  E.,  his  wife,  so  long  lived  ;  if  E.  survived  her  husband, 
then  to  her  for  life;  and  after  her  death  to  F.  in  tail,  with 
remainders  over  in  default  of  issue.  The  remainder  to  E. 
is  contingent  upon  her  surviving  her  husband ;  but  the  sub- 
sequent remainder  to  F.  in  tail,  and  the  remainders  over, 
are  vested.  If  E.'s  remainder  does  not  vest,  F.'s  remain- 
der will  take  effect  in  possession  at  the  termination  of  the 
remainder  to  B.  and  C,  the  contingency  only  postponing  or 
-accelerating  the  time  for  enjoying  the  subsequent  remain- 
ders.2 

1  Wright  v.  Stephens  4  B.  &  Aid.  574 ;  Bradford  v.  Foley,  1  Doug.  63 ; 
Doe  v.  Brabant,  3  Bro.  C.  C.  393 ;  Sims  v.  Conger,  39  Miss.  232. 

2  Bradford  v.  Foley,  1  Doug.  63;  Napper  v.  Sanders,  Hutt,  117;  Le- 
thieullier  v.  Tracy,  3  Atk.  774 ;  Doe  v.  Ford,  2  E.  &  B.  970 ;  Fearne  Cont. 
Item.  233 ;  2  Washb.  on  Real  Prop.  572.  Mr.  Fearne  divides  the  cases  in- 
volving these  questions  into  three  classes  (Fearne  Cont.  Rem.  233) ;  and  al- 
though it  is  not  necessary  to  the  understanding  of  the  subject,  the  classification 
is  here  given  as  a  fair  example  of  the  almost  painful  refinements  of  the  earlier 
common-law  writers  on  the  law  of  real  property,  and  it  will  assist  one  in 
learning  the  subject  of  remainders,  if  the  trouble  is  taken  to  master  the  dis- 
tinctions. Mr.  Fearne's  first  class  consists  of  limitations  after  a  preceding 
estate,  which  is  made  to  depend  upon  a  contingency  which  never  takes  effect. 
The  second  class  includes  all  cases  of  limitation  over  upon  a  conditional  de- 
termination of  the  preceding  estate,  and  such  preceding  estate  never  takes  ef- 
fect. The  third  class  takes  in  those  remainders,  which  are  limited  to  take 
effect  upon  the  determination  of  a  preceding  estate  by  a  contingency,  which 
never  happens,  although  the  preceding  estate  does  take  effect.  An  example 
of  the  first  class  would  be  a  devise  to  A.  for  life,  and  after  his  decease  re- 
mainder to  the  use  of  his  first  and  other  sons  by  any  future  wife  in  tail  male; 
but  if  A.  should  marry  any  woman  related  to  his  present  wife,  the  limitation 
will  be  void,  and  the  estate  shall  go  to  the  children  of  B.  A.  did  not  marry 
aBecond  time,  and  the  question  was,  did  the  children  of  B.  take  at  the  death 
«of  A.  without  issue  by  a  second  marriage.     It  was  held  that  the  contingency 

331 


§  414  CONTINGENT  REMAINDERS.        [PART  II,. 

§  414.  Same — Such  limitations  in  wills.  —  There  i& 
very  little  difficulty  experienced  in  determining  whether  the 
contingency  affects  all  of  the  successive  limitations  in  re- 
mainder, when  they  appear  in  a  deed.  But,  on  account  of 
the  frequently  inaccurate  and  untechnical  language  of  tes- 
tators, such  limitations  in  wills  often  give  considerable 
trouble  in  the  interpretation  and  construction  of  them. 
And  it  may  be  laid  down  as  the  universal  rule  that  the  de- 
termination of  these  questions  depends  upon  what  appears 
to  be  the  intention  of  the  testator  in  respect  to  them,  as  ex- 
pressed in  his  will.  If  the  intention  appears  to  have  been 
to  extend  the  contingency  to  all  the  limitations,  it  will  have 
the  effect  of  making  them  all  contingent ;  otherwise  the 
subsequent  remainder  will  be  vested,  whatever  may  be  the 
strict  and  literal  meaning  of  the  terms  used.1     Thus  a  devise 

only  affected  the  limitation  to  A.'s  issue,  and  that  the  remainder  to  the  chil- 
dren of  B.  was  vested,  and  therefore  took  effect,  notwithstanding  the  limita- 
tion to  A.'s  issue  by  a  second  marriage  failed.  Bradford  v.  Foley,  1  Doug* 
f>3.  See  Scatterwood  v.  Edge,  1  Salk.  230  n ;  Doe  v.  Brabant,  3  Bro.  C.  C. 
393.  The  second  class  may  be  demonstrated  by  the  following  ease :  A  de- 
vise to  A.  for  years,  remainder  to  the  first  and  other  sons  of  B.  in  tail  male, 
successively,  provided  they  should  take  the  name  of  the  testator;  if  they  re- 
fuse to  do  so,  or  they  die  without  issue,  then  to  the  first-born  son  of  C.  in  tail 
male,  with  remainders  over.  B.  never  had  any  sons.  If  the  condition,  the 
performance  of  which  had  to  precede  the  vesting  of  the  estate  in  B.'s  son,  af- 
fected the  remainder  to  C.'s  son,  then  the  failure  of  issue  in  B.  would  defeat 
the  remainder  to  C.'s  son.  But  it  was  held  that  that  was  not  the  case ;  that 
the  remainder  to  C.'s  son  was  independent  of  this  contingency,  and  took  effect^ 
whatever  became  of  the  remainder  to  B.'s  sons.  Scatterwood  v.  Edge,  1  Salk. 
230.  The  following  is  an  example  of  the  third  class:  A.  devised  to  his  son  in 
tail  male,  remainder  to  B.  for  life,  remainder  to  B.'s  sons  in  tail  male,  upon 
condition  that  he  should  change  his  name,  and  upon  his  refusal,  or  the  refusal 
of  any  of  his  sons  to  do  so,  the  estate  was  to  go  to  D.  B.  performed  the  con- 
dition, and  died  without  issue.  It  was  held  that  the  performance  of  the  con- 
dition by  B.  defeated  the  devise  over  to  D.,  for  the  latter  limitation  was 
intended  only  to  take  effect  upon  the  breach  of  the  condition.  Amherst  v. 
Lytton,  3  Bro. P.  C.  486.  But  see  Luxford  v.  Cheeke,  3  Lev.  125.  See  2  Washb. 
on  Real  Prop.  572-575. 

1  2  Washb.  on  Real  Prop.  573,  575 ;  1  Prest.  Est.  88 ;  Fearne  Cont.  Rem. 
235 ;  Luxford  v.  Cheeker,  3  Lev.  125 ;  Doe  v.  Shipphard,  1  Doug.  75 ;  Davis, 
v.  Norton,  2  P.  Wms,  390. 


<CH.  XII.]  CONTINGENT    REMAINDERS.  §    414 

was  limited  to  the  use  of  testator's  son  for  life,  and,  on  his 
decease,  remainder  to  the  use  of  his  first  and  other  sons  by 
any  future  wife  in  tail  male ;  provided  that  if  the  son  should 
marry  any  woman  related  to  his  present  wife  the  uses  to  the 
issue  of  such  marriage  would  be  void  and  the  estate  go  to 
the  use  of  the  children  of  H.  The  son  did  not  marry  at  all. 
There  was  no  express  direction  as  to  how  the  estate  should  f 
go  if  the  son  died  without  issue.  But  it  was  held  upon  the 
construction  of  the  whole  will  that  the  intention  of  the  tes- 
tator was  that  the  children  of  H.  should  take,  whether  the 
son  married  the  objectionable  person,  or  did  not  marry  at 
all.1  The  two  following  cases  will  show  how  close  and  re- 
fined the  construction  can  be,  and  how  dependent  the  con- 
struction is  upon  the  apparent  intention  of  the  testator. 
In  the  one  case  the  devise  was  to  A.  for  a  term  of  years, 
remainder  to  the  first  and  other  sons  of  B.  in  tail  male, 
provided  they  each  should  take  the  name  of  the  testator ; 
but  should  they  refuse  to  do  so,  or  should  die  without  issue, 
then  over  to  C.'s  eldest  son  in  tail  male,  with  remainders 
over.  A  strict  construction  of  this  devise  would  make  the 
remainder  to  C.'s  eldest  son  in  tail,  as  well  as  the  other  re- 
mainders over,  contingent  upon  the  refusal  of  B.'s  sons  to 
take  the  testator's  name,  and  these  remainders  could  only 
vest  upon  the  happening  of  this  contingency.  But  the  court 
held  that  the  contingency  only  referred  to  the  remainders 
to  B.'s  sons,  and  if  B.  had  no  son  the  remainder  to  C.'s  son 
would  take  effect  just  as  well  as  if  B.  had  had  a  son,  and 
the  son  had  refused  to  perform  the  condition  annexed  to 
his  estate.2  In  the  other  case,  the  devise  was  to  the  testa- 
tor's son  in  tail  male,  remainder  to  B.  for  life,  remainderto 
B.'s  sons  in  tail  male,  upon  condition  that  he  should  change 
his  name,  and  if  he,  or  any  son  of  his,  should  refuse  so  to 
do,  the  estate  was  to  go  to  D.     The  testator's  son  died  with- 

1  Bradford  v.  Foley,  1  Doug.  63. 

2  Scatterwood  v.  Edge,  1  Salk.  230. 

333 


§    415  CONTINGENT    REMAINDERS.  [PART    IK 

out  issue.  B.  changed  his  name  and  then  died  without  issue. 
It  was  held  that  D.'s  estate  was  to  vest  only  in  case  B.  or 
any  of  his  sons  should  refuse  to  perform  the  condition,  and 
since  B.  did  change  his  name,  the  condition  was  performed, 
and  his  death  afterwards  without  issue  defeated  the  estate 
in  D.1  This  subject  has  received  a  more  full  and  complete 
treatment  by  Mr.  Fearne  in  his  work  on  contingent  remain- 
ders, but  the  explanation  here  given  will  suffice  for  all  prac- 
tical purposes. 

§  415.  Alternate  remainders  in  fee.  — Although  it  is  a 
well  established  rule  that  a  remainder  cannot  be  limited 
after  a  fee,  yet  estates  may  be  so  limited  that  the  remainder 
in  fee  shall  go  to  one  or  the  other  of  two  persons  upon  the 
happening  or  not  happening  of  a  certain  contingency.  This- 
is  called  a  fee  with  a  double  aspect.  If  the  remainder  vests 
in  one  the  other  remainder  is  absolutely  void,  and  the  sec- 
ond vests  only  when  the  first  fails.  Thus  a  devise  was  made 
to  A.  for  life,  and  if  he  had  issue,  then  to  such  issue  in  fee; 
but  if  he  died  without  issue,  then  to  B.  in  fee.  If  A.  died 
without  issue,  then  the  remainder  to  B.  would  vest  and  take 
effect;  but  if  A.  died  leaving  issue,  B.'s  remainder  would 
at  once  be  defeated.  B.'s  remainder  is  not  made  to  take 
effect  upon  the  determination  of  the  remainder  to  A. 's  issue. 
If  it  had  been  so  limited  as  to  take  effect  in  derogation  of 
the  remainder  to  A.'s  issue,  after  it  had  vested,  it  would 
have  been  void  as  a  remainder,  although  it  would  have  been 
held  good  as  an  executory   devise.     But  the  alternate  re- 

1  Amherst  v.  Lytton,  3  Bro.  P.  C.  486.  A  parallel  case  to  the  one  cited  in 
the  preceding  note,  in  which  the  court  reached  a  contrary  decision,  is  that 
of  Luxford  v.  Cheeke,  3  Lev.  125.  In  that  case  the  testator  devised  to  his 
wife  for  life;  but  if  she  married  again,  the  estate  should,  upon  her  marriage, 
vest  in  his  son  H.  in  tail  male,  with  remainders  over.  The  wife  did  not 
marry  again,  and  died.  It  was  held,  that  from  a  consideration  of  the  whole 
will,  it  was  the  apparent  intention  of  the  testator  that  his  son  H.  should  take 
the  estate  in  tail,  only  in  case  the  testator's  wife  should  marry  again,  and 
since  she  remained  a  widow,  the  remainder  in  tail  was  defeated. 

334 


CH.  XII.]  CONTINGENT   KEMAINDERS .  §    417 

mainders,  in  order  to  be  good,  must  both  be  contingent. 
The  second  is  necessarily  contingent,  and  if  the  first  in- 
vested the  second  could  only  take  effect  by  defeating  or 
destroying  the  first,  and  this  would  make  it  a  remainder 
limited  after  a  fee,  and  therefore  void.1 

§  416.  Restrictions  upon  the  nature  of  the  contin- 
gency—  Its  legality.  —  The  contingent  event,  upon  the 
happening  of  which  the  remainder  is  to  vest,  must  not  be 
illegal,  or  contra  bonos  mores,  against  good  morals.  Thus, 
if  the  remainder  is  limited  to  a  bastard  not  in  being,  it 
would  be  void.  And  such  would  be  the  case  whenever  the 
contingency  involved  was  against  public  policy.  This  is 
only  a  reiteration  of  the  rule,  by  which  the  legality  of  all 
conditions  to  estates  is  tested.2 

§  417.  Same  —  Remoteness. — The  event  must  not  be 
too  remote,  so  as  to  suspend  the  power  of  alienation  beyond 
the  period  allowed  by  the  policy  of  the  law.  Lord  Coke, 
and  the  law  writers  of  his  day,  laid  down  the  rule  that  the 
event  must  be  a  common  possibility ,  as  it  was  called  ;  and 
that  if  a  double  possibility ,  or  a  possibility  upon  a  possibility , 
was  involved  in  the  contingency,  the  remainder  would  be 
void.  A  remainder  to  an  unborn  son,  according  to  this 
rule,  would  be  good ;   but  a  remainder  to  A.,  the  unborn  son 

1  Luddington  v.  Kime,  9  Ld.  Raym.  203  ;  Goodwright  v.  Dunham,  1  Doug. 
265;  Doe  v.  Shelby,  2  B.  &  C.  923 ;  Doe  v.  Challis,  2  Eng.  Law  &  Eq.  215 ; 
Dunwoodie  v.  Reed,  3  Serg.  &  R.  452 ;  Taylor  v.  Taylor,  63  Pa.  St.  481 ;  3 
Am.  Rep.  565;  2  Wash b.  on  Reai  Prop.  575-577.  In  Luddington  v.  Kime, 
which  may  be  taken  as  a  good  example  of  the  rule,  the  devise  was  to  A.  for 
life,  remainder  to  his  male  issue  in  fee  simple,  remainder  over  to  T.  B.,  if  A. 
should  die  without  male  issue.  These  remainders  are  alternate,  one  of  which 
alone  can  vest,  and  the  vesting  of  one  and  the  defeat  of  the  other  are  to  take 
place  at  the  same  time,  viz. :  at  the  death  of  A.  If  the  remainder  to  T.  13. 
had  been  limited  on  another  contingency,  and  its  vesting  was  to  take  place  at 
some  other  time,  or  if  the  limitation  to  A.'s  issue  was  vested,  instead  of  be- 
ing contingent,  the  remainder  to  T.  B.  would  be  a  remainder  limited  after  a- 
fee. 

2  2  Washb.  on  Real  Prop.  580;  Williams  on  Real  Prop.  272. 

335 


§    417  CONTINGENT    REMAINDERS.  [PART    II. 

of  B.,  would  be  void,  because  it  involved  a  double  possi- 
bility :  First,  that  B.  shall  have  a  son ;  and  secondly,  that 
his  name  shall  be  A.  This  rule  has  long  since  been  dis- 
carded by  the  courts  as  misleading,  and  not  at  all  consonant 
with  public  policy.  Such  a  remainder  would  now  be  held 
good.1  It  has  never  received  general  recognition  by  the 
courts,  and  it  was  even  evaded  by  the  authors  of  it  by  the 
introduction  of  vital  exceptions.  For  example,  Lord  Coke 
tells  us  that  the  contingency  of  two  persons,  presently  mar- 
ried to  different  persons,  marrying  each  other,  is  only  a 
common  possibility;  while  the  possibility  that  one  shall 
have  a  son  named  A.  is  double.2  But  while  this  rule  no 
longer  prevails,  it  does  not  follow  that  a  remainder  will  be 
good,  however  remote  the  contingency  may  be.  Some  have 
held  that  the  rule  of  perpetuities,  which  prevails  in  respect 
to  executory  devises  and  contingent  uses,  has  been  applied 
to  contingent  remainders.  But  this  is  equally  fallacious.3 
The  only  restriction  imposed  upon  the  limitation  of  contin- 
gent remainders  is  that  there  can  be  no  limitation  to  the  un- 

1  2  Waslib.  on  Renl  Prop.  680;  Williams  on  Real  Prop.  273,  274;  Cholm- 
dey's  Case,  2  Rep.  51 ;  Cole  v.  Sewell,  4  Dru.  &  Warr.  27,  s.  c.  2  H.  L. 
Cas.  186.  In  Routledge  v.  Dorvil,  2  Ves.  jr.  337,  a  remainder  was  upheld, 
the  vesting  of  which  depended  upon  four  contingencies;  that  a  husband 
and  wife  should  have  a  child,  that  the  child  should  have  a  child,  that  the 
grandchild  should  be  alive  at  the  decease  of  the  survivor  of  the  grandparents, 
and  if  it  is  a  grandson,  he  should  attain  the  age  of  twenty-one,  and  if  a  grand- 
daughter, she  should  attain  that  age  or  marry.  In  Cole  v.  Sewell,  supra, 
Lord  St.  Leonards  (Sir  E.  Sugden)  says :  "As  to  the  question  of  remoteness, 
at  this  time  of  day  I  was  very  much  surprised  to  hear  it  pressed  upon  the 
•court,  because  it  is  now  perfectly  settled  that  where  a  limitation  is  to  take 
effect  as  a  remainder,  remoteness  is  out  of  the  question  ;  for  the  given  limita- 
tion is  either  a  vested  remainder,  and  then  it  matters  not  whether  it  ever 
vest  in  possession,  because  the  previous  estate  may  subsist  for  centuries,  or 
for  all  time,  or  it  is  a  contingent  remainder,  and  then,  by  the  rule  of  law, 
unless  the  event  upon  which  the  contingency  depends  happens  so  that  the 
remainder  may  vest  eo  instanti,  the  preceding  limitation  determines,  it  can 
never  take  effect  at  all." 

2  Williams  on  Real  Prop.  273 ;  2  Rep.  51  b ;  10  Rep.  50  b. 
s  Williams  on  Real  Prop.  274,  Rawle's  note. 

336 


€H.  XII.]  CONTINGENT    REMAINDERS.  §    418 

born  child  of  an  unborn  person.1  In  abolishing  the  rule 
that  there  cannot  be  a  double  possibility,  the  courts  extracted 
therefrom  its  essence,  and  formulated  it  in  the  above  rule. 
A  remainder,  therefore,  may  be  made  to  depend  upon  any 
number  of  contingencies,  provided  the  person  who  is  to  take 
is  not  the  unborn  child  of  an  unborn  person.  This  does 
not,  of  course,  prevent  the  limitation  of  an  estate  tail  to  an 
unborn  child.  And  when  a  testator  attempts  to  give  a  life 
estate  to  an  unborn  person,  with  remainder  in  tail  to  his 
children,  the  courts,  taking  note  of  the  general  intent  to 
create  an  estate  tail,  will  construe  the  estate  to  the  unborn 
person  to  be  a  fee  tail,  instead  of  declaring  void  the  re- 
mainder in  tail  to  his  children.2  But  if  such  a  limitation 
appeared  in  a  deed  this  construction  could  not  be  upheld, 
and  the  remainder  would  be  declared  void.3 

§418.   Same  —  Abridging   the    particular    estate.  —  A 

third  rule  in  respect  to  the  contingent  event  is  that  it  must 
not  abridge  the  particular  estate,  so  as  to  defeat  it  before 
its  natural  termination.  In  other  words,  a  remainder  can- 
not be  limited  after  an  estate  upon  condition,  to  take  effect 
upon  the  breach  of  the  condition,  even  if  the  estate  upon 
condition  is  less  than  a  fee.  Thus,  in  a  limitation  to  a  widow 
for  life,  and  if  she  should  marry  again,  then  over,  the  lim- 
itation over  would  be  void  if  it  appears  in  a  deed  —  unless 
it  was  in  the  nature  of  a  shifting  use;  — and,  if  by  will,  it 
could  only  take  effect  as  an  executory  devise.  The  limita- 
tion, in  order  to  be  good  as  a  remainder,  should  be  to  the 

1  Hay  v.  Coventry,  3  T.  R.  86 ;  Brudenell  v.  Elwes,  4  East,  452;  Fearne 
Cont.  Rem.  662,  565 ;  Monypenny  v.  Dering,  2  De  G.  M.  &  G.,  145 ;  s.  c. 
16  M.  &  W.  428;  Cole  v.  Sewell,  2  H.  L.  Cas.  186;  Counden  v.  Gierke,  Hob. 
33  a;  Jackson  v.  Brown,  13  Wend.  442. 

2  Doe  v.  Cooper,  1  East,  234;  Den  v.  Pukey,  5  T.  R.  303;  Monypenny  v. 
Dering,  16  M.  &  W.  428;  Humberston  v.  Humberston,  1  P.  Wms.  332; 
Nourse  v.  Merriam,  8  Cush.  11  ;  Allyn  v.  Mather,  9  Conn.  114;  Jackson  v. 
Brown,  13  Wend.  437;  Daebler's  Appeal,  64  Pa.  St.  15. 

3  2  Washb.  on  Real  Prop.  582  ;  Williams  on  Real  Prop.  276,  Rawle's  note. 

22  337 


§    419  CONTINGENT   REMAINDERS.  [PART   II. 

widow  as  long  as  she  remains  a  widow,  remainder  over. 
That  is,  the  preceding  estate  must  be  an  estate  upon  limita- 
tion, instead  of  an  estate  upon  condition.1  The  only  ex- 
ception to  this  rule  is  where  the  remainder  is  given  to  the 
same  person  who  has  the  particular  estate,  or  to  the  sur- 
vivor or  survivors  of  them.  In  such  a  case,  the  happening 
of  the  condition  and  the  consequent  vesting  of  the  remain- 
der only  defeats  the  particular  estate  by  causing  it  to  merge 
in  the  greater  estate,  and  practically  enlarges  it  instead  of 
defeating  it.  Thus  an  estate  was  given  to  a  wife  and 
daughter  for  their  lives  and  the  life  of  the  survivor,  and  if 
the  daughter  had  Issue,  then  to  the  daughter  and  her  heirs 
forever  after  the  death  of  the  wife ;  and  if  the  daughter 
died  without  issue,  then  to  the  wife  and  her  heirs  forever. 
These  remainders  were  held  good  in  accordance  with  the 
above  exception.2  The  limitations  after  the  estate  for  life 
to  the  wife  and  daughter  were  alternate  remainders,  and 
not  conditional  limitations. 

§  419.  How  contingent  remainders  niay  be  defeated. — 

As  a  corrollary  to  the  rule  that  the  contingent  remainder 
must  vest  on  or  before  the  termination  of  the  particular 
estate,  by  whatever  means  it  is  determined,  it  follows  that 
if  the  particular  estate  is  defeated  or  destroyed  in  any  man- 
ner before  its  natural  period  of  limitation  has  run,  the  con- 
tingent remainder  will  also  be  defeated,  if  it  has  not  then 

1  2  Washb.  on  Eeal  Prop.  582,  583 ;  1  Prest.  Est.  91 ;  Fearne  Cont.  Rem. 
262 ;  Sheffield  v.  Orrery,  3  Atk.  282 ;  Cogan  v.  Cogan,  Cro.  Eliz.  360 ;  Pro- 
prietors Brattle  Sq.  Church  v.  Grant,  3  Gray,  149;  Green  v.  Hewitt,  97  111. 
113;  13  Am.  Rep.  102.  In  Indiana,  Wisconsin, and  Minnesota,  statutes  per- 
mit the  limitation  of  contingent  remainders,  which,  in  vesting,  abridge  the 
particular  estates  which  support  them.  And  in  New  York,  all  conditional 
limitations  are  made  legal  estates,  and  a  limitation  to  take  effect  in  deroga- 
tion of  the  particular  estate  is  a  legal  estate,  although  it  is  not  a  contingent 
remainder.  2  Washb.  on  Real  Prop.  594. 

2  2  Washb.  on  Real  Prop.  583,  584 ;  Goodtitle  v.  Billington,  1  Doug.  753. 
But  see  Johnson  v.  Johnson,  7  Allen,  197. 

338 


CH.  XII.]  CONTINGENT   REMAINDERS.  §    421 

become  vested.  At  common  law  the  rule  was  applied  almost 
without  limitation,  so  that  any  destruction  of  the  particular 
estate  resulted  in  a  defeat  of  the  remainder.1 

§  420.  Same — 1.  By  disseisin  of  the  particular  ten- 
ant. —  The  mere  disseisin  of  the  tenant  for  life  would  not 
defeat  the  contingent  remainder,  provided  he  has  not  been 
so  far  divested  of  his  seisin  that  he  has  lost  his  right  of 
entry,  and  would  be  forced  to  his  right  of  action  in  order  to 
recover  the  seisin.  In  such  a  case  there  would  be  no  seisin, 
whether  legal  or  actual,  present  in  the  particular  tenant  to 
support  the  remainder,  and  it  would  accordingly  be  defeated. 
But  as  long  as  he  has  not  lost  his  right  of  entry  he  still  re- 
tains the  legal  seisin,  although  deprived  of  his  actual  seisin 
by  the  tortious  possession  of  the  disseisor.2  The  common- 
law  distinction  between  the  right  of  entry  and  of  action, 
and  the  law  of  descent  cast,  resulting  in  a  loss  of  the  right 
of  entry,  have  been  abolished  in  most  of  the  States,  so  that 
the  prevailing  rule  in  this  country  is  that  no  disseisin  of  the 
particular  tenant  will  work  a  destruction  of  the  contingent 
remainder.3 

§421.  Same  —  2.  By  merger. — It  has  already  been 
shown  that  whenever  a  particular  estate  and  a  remainder 
become  united  in  one  person  at  the  same  time,  the  former 
is  merged  in  the  latter,  the  whole  becoming  one  estate. 
The  particular  estate  is  effectually  destroyed  by  a  merger, 
and  loses  its  identity  altogether.  If,  therefore,  the  partic- 
ular tenant  surrenders  to  the  reversioner  or  ultimate  re- 

1  Doe  v.  Gatacse,  5  Bing.  N.  C.  600 ;  Archer's  Case,  1  Co.  66  b ;  Penhey  v. 
Harrell,  2  Freem.  213 ;  2  Bla.  Com.  171 ;  2  Washb.  on  Keal  Prop.  589. 

2  2  Washb.  on  Real  Prop.  586 ;  2  Cruise's  Dig.  245 ;  Williams  on  Real 
Prop.  280 ;  Fearne  Cont.  Rem.  286. 

3  2  Washb.  on  Real  Prop.  586,  *note.  In  Massachusetts,  Kentucky,  Missis- 
sippi, Missouri,  Texas,  Virginia,  New  York,  Michigan,  Minnesota,  and  Wis- 
consin, disseisin  of  the  tenant  of  the  particular  estate  will  not  defeat  the 
«ontingent  remainder.    2  Washb.  on  Real  Prop.  594. 

339 


§  422  CONTINGENT  REMAINDERS.        [PART  II. 

i 

mainder-man  in  fee,  or  if  he  acquires  the  reversion  without 
a  vested  intervening  estate,  the  intervening  contingent  re- 
mainder will  be  defeated.1  This  will  happen,  whether  the 
reversion  is  acquired  by  descent  or  by  purchase,  except  in 
one  single  case  of  descent.  If  the  particular  and  contingent 
remainders  are  created  by  a  devise,  and  the  reversion  de- 
scends to  the  tenant  of  the  particular  estate,  as  the  heir  of 
the  testator,  no  merger  would  result,  as  it  would  nullify  the 
expressed  intention  of  the  testator  to  give  a  contingent 
remainder  to  a  person  other  than  his  heir.  But  if  the  partic- 
ular tenant,  in  the  case  of  such  a  devise,  subsequently  ac- 
quires the  reversion  by  purchase,  or  by  descent  from  the 
heir  of  the  testator,  a  merger  will  result  as  in  any  other 
case,  and  the  contingent  remainder  will  be  defeated.2 

§  422.  Same  —  3.  By  feoffment.  —  The  contingent  re- 
mainder could  also  be  defeated  by  the  conveyance  of  the 
tenant  by  feoffment.  It  was  the  peculiar  rule  in  connection 
with  this  mode  of  conveyance,  that  if  the  tenant  of  a  partic- 
ular estate  —  for  example,  the  tenant  for  life  —  attempted 
to  convey  a  fee  or  other  greater  estate  by  feoffment,  he  lost 
his  estate  and  conveyed  nothing  to  his  feoffee.3  The  par- 
ticular estate  was  effectually  destroyed,  and  it  would  con- 
sequently defeat  any  contingent  remainders  depending  upon 
it.  But  this  peculiarity  prevailed  only  in  the  case  of  feoff- 
ment.    If  the  conveyance  was  in  any  other  form,  as  by  any 

i  Penhey  v.  Harrell,  2  Freem.  213;  Doe  v.  Gatacse,  2  Bing.  N.  C.  609; 
Archer's  Case,  1  Co.  66  b ;  2  Washb.  on  Real  Prop.  589.  But  there  will  be  no 
merger  by  the  transfer  to  the  tenant  in  tail  of  the  remainder  after  the  estate 
tail.  Wiscott's  Case,  2  Rep.  61  Roe  v.  Baldwere,  5  T.  R.  110;  Poole  v. 
Morris,  29  Ga.  374. 

2  Fearne  Cont.  Rem.  340 ;  2  Washb.  on  Real  Prop.  589,  590 ;  Crump  v. 
Norwood,  7  Taunt.  362;  Doe  v.  Scudmore,2  B.  &  P.  294;  Plunket  v.  Holmes. 
1  Lev.  11 ;  Cresfield  v.  Storr,  86  Aid.  129. 

3  See  post,  sect.  770.  "If  it  (the  feoffment)  proposed  to  convey  a  fee  sim- 
ple, it  created  an  actual  fee  simple  in  the  feoffee,  by  right  or  by  wrong,  accord- 
ing as  the  feoffor  was  or  was  not  seized  in  fee."     3  Washb.  on  Real  Prop.  351. 

340 


CH.  XII.]  CONTINGENT   REMAINDERS.  §    424 

of  the  deeds  operating  under  the  Statute  of  Uses,  the  grantee 
would  take  only  what  estate  the  tenant  had,  and  the  contin- 
gent remainder  would  remain  unaffected.1 

§  423.   Same  —  4.  By  entry  for  condition  broken.  — If 

the  particular  estate  is  an  estate  upon  condition,  since  a  con- 
tingent remainder  could  not  be  made  to  vest  upon  the 
breach  of  the  condition,  such  a  breach  and  the  consequent 
entry  of  the  reversioner,  he  being  the  only  one  who  could 
enter,  would  destroy  the  particular  estate,  and  therewith  the 
remainder  dependent  upon  it.2 

§  424.  Trustees  to  preserve.  —  To  remove  the  great  dan- 
ger of  destruction  by  the  act  of  the  particular  tenant,  to 
which  contingent  remainders  were  exposed,  a  very  ingenious 
method  was  devised  by  Sir  Geoffrey  Palmer  and  Sir  Orlando 
Bridgman,  whereby  the  contingent  remainder  was  fully  pro- 
tected from  the  effect  of  a  destruction  of  a  particular  estate 
before  its  natural  termination.  It  was  by  interposing  be- 
tween the  particular  estate  and  the  contingent  remainder  — 
a  vested  remainder  to  trustees,  as  it  was  called,  "  to  pre- 
serve contingent  remainders."  For  example,  the  limita- 
tions would  be  to  A.  for  life,  remainder  during  the  life  of 
A.  to  trustees  to  preserve  contingent  remainders,  remainder 
to  the  heirs  of  B.     If,  by  any  act  of  his,  A.'s  estate  is  de- 

1  2  "Washb.  on  Real  Prop.  589;  Thompson  v.  Leach,  2  Salk.  576;  Smith 
v.  Clyfford,  1  T.  R.  744;  Dennett  v.  Dennett,  40  N.  H.  498;  3  Washb.  on  Real 
Prop.  352.  It  is  now  provided  by  statute  that  feoffment  shall  not  have  any 
tortious  operation.  3  Washb.  on  Real  Prop.  351 ;  4  Kent's  Com.  481.  There 
are  also  general  statutory  provisions  in  Massachusetts,  Kentucky,  Mississippi, 
Missouri,  Texas,  Virginia,  New  York,  Michigan,  Minnesota,  and  Wisconsin, 
which  declare  that  no  alienation  or  other  act  of  the  tenant  of  the  particular 
estate  shall  defeat  the  contingent  remainder  before  the  happening  of  the  con- 
tingency, on  which  the  vesting  of  the  remainder  is  made  to  depend.  2  Washb. 
on  Real  Prop.  594,  595. 

2  Cogan  v.  Cogan,  Cro.  Eliz.  360 ;  Sheffield  v.  Orrery,  3  Atk.  282 ;  Pro- 
prietors Brattle  Sq.  Church  v.  Grant,  3  Gray,  149 ;  Williams  v.  Angell,  7  R. 
I.  152. 

341 


§    424  CONTINGENT    REMAINDERS.  [PART    II. 

stroyed,  whether  it  be  by  disseisin,  merger,  feoffment,  or 
the  breach  of  a  condition  attached  to  his  estate,  the  vested 
remainder  to  the  trustees  will  take  effect  in  possession. 
And  since  their  estate  is  a  trust,  they  cannot  in  any  way 
defeat  it ;  it  continues  to  exist  under  all  circumstances,  until 
the  period  of  its  natural  limitation  has  expired.1  In  England, 
and  generally  in  the  States  of  this  countiy,  statutes  have 
been  passed  preventing  the  destruction  of  the  contingent 
remainder  by  the  determination  of  the  particular  estate  in 
any  other  mode,  except  the  expiration  of  the  period  of  nat- 
ural limitation.  Wherever  there  are  such  statutes  it  is  not 
necessary  to  interpose  a  remainder  to  trustees  ;  but  in  times 
past  it  was  a  very  essential  precaution,  and  was  generally 
employed. 

1  2  Washb.  on  Real  Prop.  590;  2  Bla.  Com.  171;  Fearne  Cont.  Rem.  325 j 
Williams  on  Real  Prop.  283,  284. 
342 


SECTION  III. 

ESTATES   "WITHIN  THE   RULE   IN   SHELLEY'S   CASE. 

Section  433.  —  Origin  and  nature  of  the  rule. 
434.  —  Requisites  of  the  rule. 

§  433.  Origin  and  nature  of  the  rule. — It  has  long 
been  a  rule  of  the  common  law,  that  if  an  estate  for  life, 
or  any  other  particular  estate  of  freehold,  be  given  to  one 
with  remainder  to  his  heirs,  the  first  taker  shall  be  held  to 
have  the  fee,  and  the  heirs  will  take  by  descent  and  not  by 
purchase.  The  first  taker  is  thereby  enabled  to  make  a 
free  disposition  of  the  estate  in  fee,  and  the  heirs  take  by 
descent,  only  when  no  disposition  has  been  made  of  it  by 
the  first  taker.  The  rule  was  first  given  an  authoritative 
utterance  in  Shelley's  Case,  decided  in  the  time  of  Lord 
Coke,  and  hence  it  is  called  "the  rule  in  Shelley's  Case." 
Although  called  "the  rule  in  Shelley's  Case,"  it  was  then 
an  ancient  rule  of  the  common  law.1  Blackstone  refers 
it  to  a  case  which  was  tried  in  the  18  Edw.  II.  It  is 
not  definitely  known  what  are  the  precise  reasons  for 
establishing  such  an  arbitrary  rule.  Some  have  held  that 
it  was  to  prevent  the  loss  of  the  lord's  wardships  by 
permitting  the  heirs  to  take  as  purchasers;  while  others 
have  thought  it  arose  from  the  general  prevalence  of  the 
custom  to  construe  the  word  "heirs,"    in  instruments  of 

1  Shelley's  Case,  1  Rep.  94 ;  2  Washh.  on  Real  Prop.  597 ;  Williams  on 
Real  Prop.  253.  In  Perrin  v.  Blake,  4  Burr.  2579,  Mr.  Justice  Blackstone 
refers  to  a  case  decided  in  the  reign  of  Edw.  IL  (18  Edw.  II.  fol.  577),  in 
which  he  thinks  the  rule  was  first  laid  down.  Mr.  Rawle  in  his  note,  (Williams 
on  Real  Prop.  255,  note  1),  calls  the  reader's  attention  to  the  fact  that  the  va- 
lidity of  the  rule  was  not  brought  into  question  in  Shelley's  Case,  but  it  was 
there  for  the  first  time  stated  so  clearly  that  it  has  been  given  the  name  of  the 
rule  in  Shelley's  Case. 

343 


§  433  rule  in  shelley's  case.  [part  ii. 

conveyance,  as  a  word  of  limitation  instead  of  purchase.1 
Perhaps  the  best  reason  is  to  be  found  in  the  fact,  that  at 
the  time,  when  the  rule  was  first  established,  a  contingent 
remainder  was  an  impossible  limitation,  the  remainder  to 
the  heirs  being  contingent  until  the  death  of  the  ancestor, 
and  the  rule  was  devised,  in  order  to  give  effect  to  the 
intent  of  the  grantor,  as  nearly  as  possible.2  But  whatever 
may  have  been  the  reason,  it  is  a  well  established  rule,  and 
prevails  wherever  it  is  not  abolished  by  statute.3     But  in 

1  2  Washb.  on  Keal  Prop.  597  ;  Williams  on  Real  Prop.  254;  1  Prest.  Est 
306. 

2  This  is  the  suggestion  of  the  author,  based  upon  the  opinion  of  Mr.  "Wil- 
liams, in  which  the  author  concurs,  that  at  an  early  day  contingent  remainders 
were  not  recognized  as  valid  legal  limitations.  See  ante,  sect.  411 ;  Williams 
on  Real  Prop.  263.  A  remainder  to  the  heirs  of  the  tenant  for  life  would  be 
a  contingent  remainder,  unless  it  was  made  under  the  rule  in  Shelley's  Case, 
to  enlarge  the  estate  of  the  first  taker  into  a  fee. 

3  The  rule  has  been  generally  recognized  by  the  courts  of  this  country,  and 
it  still  prevails  in  perhaps  most  of  the  States,  Geoag  v.  Morgan,  16  Pa.  St. 
95 ;  Carter  v.  McMichael,  11  Serg.  &  R.  429 ;  Kleppner  v.  Laverty,  70  Pa.  St. 
7:5 ;  James'  Claim,  1  Dall.  47 ;  Moore  v.  Dimond,  5  R.  I.  273 ;  Tillinghast  v, 
Coggeshall,  7  R.  I.  383  ;  Lyles  v.  Digge,  6  Harr.  &  J.  364;  Chilton  v.  Hender- 
son, 9  Gill,  432 ;  Roy  v.  Garnett,  2  W^sh.  (Va.)  9 ;  Smith  v.  Chapman,  1  Hen. 
&  M.  240;  Dottu.  Cunnington,  1  Bay,  453;  Carr  v.  Porter,  1  McCord  Ch.  60; 
Polk  v.  Paris,  9  Ga.  209;  Davidson  v.  Davidson,  1  Hawks,  163;  Hull  v.  Beals, 
23  Ind.  28 ;  Siceloff  v.  Redman,  26  Ind.  251 ;  Hancock  v.  Butler,  21  Texas,  804 ; 
Hawkins  v.  Lee,  22  Texas,  547 ;  Baker  v.  Scott,  62  HI.  86 ;  Brislain  v.  Wilson, 
63  HI.  175;  Butler  v.  Heustis,  68  111.  594;  18  Am.  Rep.  589.  In  Hillman  e. 
Bouslagh,  13  Pa.  St.  344,  Chief  Justice  Gibson,  in  an  able  opinion,  gives  the 
rule  a  most  earnest  support,  and  defends  the  policy  of  retaining  it  as  a  part  of 
the  American  law  of  real  property.  "The  rule  in  Shelley's  Case,"  says  he, 
"  ill  deserves  the  epithets  bestowed  on  it  in  the  argument.  Though  of  feudal 
origin,  it  is  not  a  relic  of  barbarism,  or  a  part  of  the  rubbish  of  the  dark  ages. 
It  is  part  of  a  system;  an  artificial  one,  it  is  true,  but  still  a  system,  and  a 
complete  one.  *  *  *  It  happily  falls  in  with  the  current  of  our  policy. 
By  turning  a  limitation  for  life,  with  remainders  to  the  heirs  of  the  body,  into 
an  estate  tail,  it  is  the  handmaid,  not  only  of  Taltarum's  Case  (in  this  case, 
estates  tail  were  held  for  the  first  time  to  be  barred  by  a  common  recovery. 
See  ante,  sect.  49),  but  of  our  statute  for  barring  entails  by  a  deed  acknowl- 
edged in  court,  and  where  the  limitation  is  to  heirs  general,  it  cuts  off  what 
would  otherwise  be  a  contingent  remainder,  destructible  only  by  a  common 
recovery.  *  *  *  It  is  admitted  that  the  rule  subverts  a  particular 
intention  in  perhaps  every  instance;   for,  as  was  said  in  Roe  v.  Bedford,  4 

344 


ch.  xii.]  rule  in  shelley's  case.  §  433 

some  of  the  States  at  the  present  time,  the  rule  has  been 
abolished  by  statute,  and  the  limitation  to  the  heirs  would 
be  construed  to  be  a  contingent  remainder,  the  heirs  taking 
by  purchase.1 

Maule  &  Sel.  363,  it  is  proof  against  even  an  express  declaration  that  the 
heirs  shall  take  as  purchasers.     But  it  is  an  intention  which  the  law  cannot 
indulge,  consistently  with  the  testator's  general  plan,  and  which  is  necessarily 
subordinate  to  it.    It  is  an  intention  to  create  an  inalienable  estate  tail  in  the 
first  donee,  and  to  invert  the  rule  of  interpretation,  by  making  the  general  in- 
tention subservient  to  the  particular  one.     The  donor  is  no  more  competent 
to  make  a  tenancy  for  life  a  source  of  inheritable  succession,  than  he  is  com- 
petent to  create  a  perpetuity,  or  a  new  canon  of  descent.     The  rule  is  too 
intimately  connected  with  the  doctrine  of  estates  to  be  separated  from  it  with- 
out breaking  the  ligaments  of  property."     The  learned  judge  is  wrong,  when 
he  says  that  the  general  rule  of  the  law  of  interpretation  and  construction 
does  not  require  the  general  intention  to  be  subservient  to  the  particular  one. 
In  the  construction  of  wills,  in  which  this  conflict  between  a  general  and  a 
particular  intent  usually  arises,  the  general  intention  only  controls  the  particu- 
lar when  the  latter  is  inoperative  on  account  of  its  illegality  or  impossibility 
of  performance,  and  the  general  intent  is  carried  out  under  the  cy  pres  doc- 
trine to  prevent  a  complete  failure  of  the  gift.     If  it  be  true  that  the  rule  in 
Shelley's  Case  arose  from  an  inability,  according  to  the  early  law,  to  create  a 
contingent  remainder,  and  this  is  certainly  more  plausible  than  to  suppose 
that  the  courts  would  arbitrarily  nullify  the  expressed  intention  of  the  donor» 
for  that  would  be  an  assumption  by  the  courts  of  legislative  powers,  then  since 
contingent  remainders  are  now  valid  limitations,  the  particular  intent  of  the 
donor  should  be  allowed  to  take  effect.     If  it  is  against  the  policy  of  the  law 
to  permit  the  creation  of  contingent  remainders,  then  they  should  be  abolished 
by  statute.    The  courts  have  no  legitimate  power  to  effect  the  change  by  any 
such  arbitrary  and  absurd  rule  of  construction,  as  the  rule  in  Shelley's  Case. 
1  The  rule  has  been  abolished  by  statute  in  Maine,  Massachusetts,  Connec- 
ticut, New  York,  Missouri,  Michigan,  Tennessee,  Virginia,  Kentucky,  Ala- 
bama, and  Wisconsin.    2   Washb.  on  Eeal  Prop.  607,  note  2 ;  Williams  on 
Real  Prop.  260,  Rawle's  note.    In  these  States  the  rule  has  been  abolished  alto- 
gether, both  as  to  grants  and  to  wills.    Richardson  v.  Wheatland,  7  Mete.  172 ; 
Bowers  v.  Porter,  4  Pick.  205 ;  Goodrich  v.  Lambert,   10  Conn,  448 ;  Moore 
v.  Littell,  40  Barb.  488 ;  Williamson  v.  Williamson,  18  B.  Mon.  329.    But  in 
New  Hampshire,  New  Jersey,  and  Ohio,  the  rule  is  only  abolished  as  to  wills. 
2  Washb.  on  Real  Prop.  607,  note  2 ;  Dennett  v.  Dennett,  40  N.  H.  500 ;  Den  v. 
Demarest,  1  N.  J.  525.    In  Mississippi  it  is  abolished  as  to  real  estate.    Powell 
v.  Brandon,  24  Miss.  343.    And  in  Rhode  Island  it  is  declared  by  statute  not  to 
apply  to  devises,  in  which  the  property  is  limited  to  one  for  life  and  remainder 
to  the  children  or  issue  of  the  devisee  for  life.    Williams  v.  Angell,  7  R.  1. 145. 
But  the  rule  still  holds  good  in  all  grants  and  devises  in  which  the  limitation 

345 


§  434  rule  in  shelley's  case.  [part  ii. 

§  434.  Requisites  of  the  rule.  — In  order  that  the  rule 
in  Shelley's  Case  may  apply,  there  must  be  a  freehold  in 
the  first  taker,  limited  expressly  or  by  implication.  An 
estate  less  than  a  freehold  would  not  be  sufficient,  because 
a  seisin  in  the  first  taker  is  necessary  to  draw  the  remainder 
to  the  particular  estate.1     It  must,  in  the  second  place,  be 

in  remainder  is  to  the  heirs  generally,  or  to  the  heirs  of  the  body,  of  the  first 
taker.  Bullock  v.  Waterman  St.  Soc. ,  5  K.  I.  273 ;  Moore  v.  Dimond,  lb. 
127;  Manchester  v.  Durfee,  lb.  549;  Cooper  v.  Cooper,  6  R.  I.  264;  Tilling- 
hast  v.  Coggeshall,  7  R.  I.  383 ;  Jillson  v.  Wilcox,  lb.  518.  In  Moore  v.  Lit- 
tell,  41  N.  Y.  66,  which  was  affirmed  in  House  v.  Jackson,  50  N.  Y.  165, 
it  was  declared  by  the  New  York  Court  of  Appeals,  that,  after  the  abo- 
lition by  statute  of  the  rule  in  Shelley's  Case,  the  limitation  to  the  heirs  of 
the  donee  for  life  is  a  vested  remainder.  This  remarkable  decision  is  alto- 
gether inconsistent  with  the  rules  of  the  law  of  remainders,  and  even  with 
the  New  York  statutory  definition  of  a  contingent  remainder,  viz. :  that  they 
are  contingent  "whilst  the  person  to  whom  or  the  event  upon  which  they  are 
limited  to  take  effect  remains  uncertain."  1  Rev.  Stat.  p.  723,  sect  13;  Mc- 
Call  on  Real  Prop.  113.  Prof.  McCall  in  referring  to  the  case  of  Moore  v. 
Littell,  says:  "Thus  a  grant  to  A.  for  life,  and  after  his  decease  to  his  heirs 
and  assigns  forever,  gives  to  the  children  of  A.  a  vested  interest  in  the  land; 
although  liable  to  open  and  let  in  after  born  children  of  A.,  and  also  liable,  in 
respect  of  the  interest  of  any  child,  to  be  wholly  defeated  by  his  death  before 
his  father."  Query,  if  there  are  no  children,  in  whom  is  the  remainder  vested? 
the  collateral  heirs?  The  true  doctrine  is,  that  such  a  remainder  is  contingent, 
nemo  est  hceres  vieentis,  and  this  is  the  rule  of  the  other  courts.  Richardson 
v.  Wheatland,  7  Mete.  169;  Moore  v.  Weaver,  16  Gray,  307;  Williams  v. 
Angell,  7  R.  I.  145;  Hillman  v.  Bouslaugh,  13  Pa.  St. -344. 

1  Pibus  v.  Mitford,  1  Ventr.  372 ;  Webster  v.  Cooper,  14  How.  500 ;  Ogden's 
App.,  70  Pa.  St.  509 ;  Williams  on  Real  Prop.  256 ;  2  Washb.  on  Real  Prop.  598, 
601.  The  rule  in  Shelley's  Case  applies  to  equitable  estates  as  well  as  to  legal 
estates,  where  the  trusts  are  executed.  Croxhall  v.  Shererd,  5  Wall.  281 ;  Til- 
linghast  v.  Coggeshall,  7  R.  I.  383.  If  they  are  executory,  as  they  usually  are 
in  marriage  settlements,  or  if  it  is  the  clear  intention  of  the  donor  that  the 
tenant  for  life  shall  not  have  the  power  to  cut  off  the  estate  in  remainder,  the 
rule  will  not  apply.  2  Washb.  on  Real  Prop.  495;  Sand.  Uses,  311 ;  Jones  v. 
Laughton,  1  Eq.  Cas.  Abr.  392 ;  Gill  v.  Logan,  11  B.  Mon.  231 ;  Berry  v.  Wil- 
liamson, 11  B.  Mon.  245.  The  rule  is  applied  to  executed  trusts  with  this 
qualification,  that  the  two  estates,  the  freehold  in  possession  and  the  remainder, 
must  both  be  legal  or  both  equitable.  The  rule  will  not  apply  where 
one  is  legal  and  the  other  is  equitable.  Silvester  v.  Wilson,  2  T.  R.  444 ; 
Adams  v.  Adams,  6  Q.  B.  860 ;  Doe  v.  Ironmonger,  3  East,  533 ;  Curtis  v.  Rice, 
12  Ves.  89 ;  Croxhall  v.  Shererd,  5  Wall.  281 ;  Ward  t>.  Amory,  1  Curt. 
34() 


•CH.  XII.]  RULE    IN    SHELLEY'S    CASE.  §    434 

•created  by  the  same  instrument  as  is  the  remainder  to  the 
heirs.  If  given  by  different  instruments  the  rule  will  not 
-apply.1  But  a  will  and  an  annexed  codicil  are  in  this  con- 
nection considered  as  constituting  one  instrument,  and  the 
rule  would  apply  if  the  life  estate  was  given  in  the  will 
proper,  and  the  reversion  in  the  codicil.  So  also  would  the 
rule  apply  if,  instead  of  a  grant  of  a  remainder,  there  ap- 
peared in  the  same  instrument  a  power  of  appointment  to 
the  heirs.2  In  the  next  place,  the  subsequent  limitation 
must  be  made  to  the  heirs  of  the  first  taker.  If  the  re- 
mainder is  limited  to  the  heirs  of  a  stranger,  or  if  it  is  lim- 
ited to  the  joint  heirs  of  two  persons,  one  of  whom  alone 
takes  the  estate  in  possession,  the  rule  does  not  apply,  and 
the  subsequent  limitation  remains  a  contingent  remainder  in 
the  heirs  as  purchasers.3  If  the  limitation  be  to  the  heirs 
of  his  body,  the  first  taker  would  have  an  estate  tail  instead 
of  a  fee.4  But  if  the  limitation  be  to  one's  heir  and  the 
heirs  male  of  the  heir,  the  rule  is  not  applicable,  the  express 

419;  Tillinghast  v.  Coggeshall,  7  R.  I.  383;  Tallman  v.  Wood,  26  Wend.  9. 
But  if  both  are  legal  it  will  not  prevent  the  rule  from  applying  if  one  of  them 
is  charged  with  a  trust  and  the  other  is  an  absolute  estate.  Tud.  Ld.  Cas. 
484;  Douglass  v.  Congreve,  1  Beav.  59;  s.  c,  4  Bing.  N.  C.  1. 

1  2  Washb.  on  Real  Prop.  598 ;  Co.  Lit.  299  b;  Butler's  note,  261 ;  Doe  v. 
Fonnereau,  1  Dougl.  508 ;  Moore  v.  Parker,  1  Ld.  Raym.  37 ;  Webster  v. 
Cooper,  14  How.  500 ;  Adams  v.  G-uerard,  29  Ga.  675. 

2  Williams  on  Real  Prop.  256;  2  Washb.  on  Real  Prop.  598;  Hayes  v. 
Forde,  2  W.  Bl.  698 ;  Tud.  Ld.  Cas.  483,  484 ;  Co.  Lit.  299  b,  Butler's  note, 
261 ;  Tillinghast  v.  Coggeshall,  7  R.  I.  383.  But  where  a  power  of  appoint- 
ment is  interposed  between  an  estate  for  life  and  a  contingent  remainder  to 
one's  children  or  to  special  heirs,  the  rule  does  not  apply,  and  the  children  or 
special  heirs  take  as  purchasers,  although  the  interposition  of  the  power 
would  not  prevent  the  application  of  the  rule,  where  the  remainder  was  lim- 
ited to  the  heirs  generally.  Dodson  v.  Ball,  60  Pa.  St.  497 ;  Yarnall's  App., 
70  Pa  St.  342. 

»  Archer's  Case,  1  Co.  66  b ;  Fuller  v.  Chamier,  L.  R.  2  Eq.  682 ;  Webster 
v.  Cooper,  14  How.  600 ;  2  Washb.  on  Real  Prop.  599 ;  Williams  on  Real 
Prop.  261. 

*  Pibus  v.  Mitford,  1  Ventr.  372;  Hillman  v.  Bouslagh,  13  Pa.  St.  351; 
Toller  v.  Atwood,  15  Q.  B.  929 ;  Doe  v.  Harvey,  4B.&C.  610. 

347 


§  434  rule  in  shelley's  case.  [part  re- 

limitation  in  tail  preventing  an  amalgamation  of  the  two 
estates.1  But,  with  these  exceptions,  nothing  that  the 
grantor  can  do  will  prevent  the  application  of  the  rule  if  the 
remainder  in  fee  or  in  tail  is  given  to  the  heirs  of  the  first 
taker  —  not  even  an  express  direction  that  the  rule  should 
not  apply.2  But  limitations  to  the  sons,  children,  or  issue 
of  him  who  takes  the  life  estate,  will  not  be  converted  by 
the  rule  into  a  fee  in  the  first  taker,  unless  they  are  created 
by  will,  and,  from  a  consideration  of  the  whole  will,  it  ap- 
pears that  these  words  were  used  in  the  sense  of  heirs.  And 
the  strongest  and  clearest  evidence  is  necessary  to  give  this 
construction  to  the  words  sons  or  children.  It  is  easier  to 
apply  this  construction  to  the  word  issue.  The  general  rule 
is  that  persons  thus  described  take  as  purchasers  and  not  by 
descent,  and  that  the  remainders  are  vested  as  soon  as  per- 
sons corresponding  to  the  description  come  into  being.3 
The  rule  will  also  apply,  even  though  there  are  intervening 
limitations  to  strangers.  But  the  fee  in  remainder  would 
vest  in  the  first  taker  expectant  upon  the  termination  of  the 
intermediate  limitation.  The  intermediate  limitation  is  not 
destroyed  by  merger  of  the  estate  in  possession  and  the  re- 
mainder under  the  operation  of  the  rule  in  Shelley's  Case.4 

1  Tud.  Ld.  Cas.  493 ;  McCullough  v.  Gliddon,  38  Ala.  208. 

2  Perrin  v.  Blake,  1  W.  Bl.  672 ;  s.  c,  4  Burr.  2579 ;  Koe  v.  Bedford,  4 
Maule  &  Sel.  363;  Toller  v.  Atwood,  15  Q.  B.  929;  Doe  v.  Harvey,  4  B.  &  C. 
610;  Jesson  v.  Doe,  2  Bligh,  1;  Doebler's  App.,  64  Pa.  St.  15;  Klappner  v. 
Laverty,  70  Pa.  St.  73 ;  Tud.  Ld.  Cas.  488,  489 ;  2  Washb.  on  Real  Prop. 
602. 

s  Poole  v.  Poole,  3  Bos.  &  P.  620;  Slater  v.  Dangerfield,  15  M.  &  W.  263; 
Doe  v.  Daviess,  4  B.  &  Ad.  43 ;  Shaw  ».  Weigh,  Strange,  798 ;  Robinson  v. 
Robinson,  1  Burr.  38 ;  Lees  v.  Mosley,  1  Younge  &  C.  589 ;  Doe  v.  Charlton, 
1  M.  &  G.  429;  Doe  v.  Collis,  4  T.  R.  299;  Flint  v.  Steadman,  36  Vt  210; 
Macumber  v.  Bradley,  28  Conn.  445;  Adams  v.  Ross,  30  N.  J.  L.  512,  over- 
ruling Ross  v.  Adams,  28  N.  J.  L.  172 ;  Price  v.  Sisson,  13  N.  J.  177 ;  Price  v. 
Taylor,  28  Pa.  St.  102;  Tyler  v.  Moore,  42  Pa.  St.  389;  Taylor  v.  Tavlor,  63 
Pa.  St.  483;  3  Am.  Rep.  565;  Webster  v.  Cooper  14  How.  500;  Ford  v.  Flint,. 
40  Vt.  394 ;  Sinton  v.  Boyd,  19  Ohio  St.  57  ;  2  Am.  Rep.  369. 

*  2  Washb.  on  Real  Prop.  601 ;  Williams  on  Real  Prop.  256-260. 
348 


CHAPTER  Xni. 

USES   AND   TRUSTS. 

Section      I.  Uses  before  the  Statute  of  Uses. 

II.  Uses  under  the  Statute  of  Uses. 

III.  Shifting,  Springing  and  Contingent  Uses. 

IV.  Trusts. 

SECTION  I. 

USES   BEFORE    THE    STATUTE    OF    USES. 

Section  437.  Pre-statement. 

438.  Origin  and  history. 

439.  What  is  a  use. 

440.  Enforcement  of  the  use. 

441.  Distinction  between  Uses  and  Trusts. 

442.  How  uses  may  be  created. 

443.  Same  —  Resulting  use. 

444.  Same  —  By  simple  declarations. 

445.  Who  might  be  feoffees  to  use  and  cestuis  que  use. 

446.  What  might  be  conveyed  to  uses. 

447.  Incidents  of  uses. 

448.  Alienation  of  uses. 

449.  Estates  capable  of  being  created  in  uses. 

450.  Disposition  of  uses  by  will. 

451.  How  lost  or  defeated. 

§  437.  Pre-statement.  — The  reader  has  been  prepared, 
by  the  classification  of  estates  presented  in  a  previous  chap- 
ter,1 for  the  discussion  of  interests  and  estates  in  lands, 
which  are  purely  equitable;  that  is,  cognizable  solely  in  a 
court  of  equity,  and  separate  and  distinct  from  the  legal 
estate,  which  is  alone  recognized  in  a  court  of  law.  Equit- 
able mortgages  and  liens  constitute  one  class  of  such  inter- 

1  See  ante,  sect.  26. 

349 


§  438  USES  AND  TRUSTS.  [PART  II. 

ests,  which  have  been  already  considered.1  The  class  of 
equitable  interests,  which  are  more  properly  comprehended 
under  the  term  estate,  is  what  is  known  as  Uses  and  Trusts. 

§  438.  Origin  and  history.  — It  is  not  proposed  to  give 
in  detail  the  history  of  the  origin  and  introduction  into  the 
English  jurisprudence  of  Uses  and  Trusts,  but  a  few  words 
are  necessary  as  explanatory  of  their  character.  At  com- 
mon law  the  only  mode  of  conveying  lands  was  by  trans- 
mutation of  possession.  This  element  was  a  necessary  in- 
gredient of  every  conveyance,  for  a  common-law  title  was 
inseparable  from  the  right  of  possession.  The  power  of 
alienation  was  also  very  much  restricted.  It  could  only  be 
done  with  the  consent  of  the  lord,  and  even  after  these  re- 
strictions upon  conveyancing  were  removed,  the  inability  to 
dispose  of  lands  by  will,  the  cumbersome  character  of  the 
common-law  conveyances,  and  the  burdens  attached  as  inci- 
dents to  a  legal  estate,  such  as  the  rights  of  dower  and 
curtesy,  the  possibility  of  escheat  and  forfeiture  for  at- 
tainder of  treason  or  corruption  of  blood,  and  the  innumer- 
able fines  and  reliefs  required  by  the  feudal  law  of  tenure 
to  be  paid  to  the  lord,  led  to  the  introduction  of  Uses  and 
Trusts,  which  relieved  the  beneficial  owner  of  all  these  bur- 
dens, and  gave  him  an  almost  absolute  property  in  the  lands. 
A  further  impetus  was  given  to  their  general  adoption  by 
the  prohibitions  imposed  by  the  magna  charta  and  the  stat- 
ute of  mortmain  upon  the  ecclesiastical  corporations  to  hold 
and  acquire  lands.  These  statutes,  recognizing  and  relating 
solely  to  legal  estates,  only  prevented  such  corporations 
from  holding  legal  estates.  The  ecclesiastics,  with  their 
customary  astuteness,  had  the  lands  conveyed  to  persons 
who  could  take  and  hold  them  in  trust,  to  permit  the  cor- 
porations to  enjoy  the  benefit  thereof.  It  may  be  doubtful 
whether  the  ecclesiastics  were  the  first  to  adopt  this  mode 

1  See  ante,  sects.  288-295. 

350 


CH.  XIII.]  USES    AND    TRUSTS.  §    439 

of  holding  lands,  but  to  them  certainly  may  be  ascribed  the 
honor  of  devisinp-  the  means  for  the  enforcement  of  the 
confidence  reposed  in  the  person,  to  whom  the  land  was 
conveyed.  Finally  the  civil  wars  between  the  houses  of 
Lancaster  and  York,  and  the  increased  danger  of  attainder 
and  confiscation  of  estates,  resulting  from  participation  in 
these  wars  upon  one  side  or  the  other,  caused  a  large  por- 
tion of  the  lands  of  England  to  be  settled  in  this  manner.1 
It  is  supposed,  with  good  reason  therefor,  that  the  doc- 
trine of  uses  and  trusts  was  derived  from  the  civil  or  Roman 
law,  and  corresponds,  in  some  respects,  to  what  is  known 
in  that  system  of  jurisprudence  as  the  fidei  commissum2 

§  439.  What  is  a  use?  —  A  use  or  trust  is  a  confidence, 
which  acquired  under  the  operation  of  the  rules  of  equity 
the  character  of  an  estate,  reposed  in  the  person  holding 
the  legal  estate,  who  is  known  as  the  feoffee  to  use  or 
trustee,  that  he  shall  permit  the  person  designated  in  the 
conveyance  to  the  feoffee  to  use  or  by  the  legal  owner,  and 
who  is  called  the  cestui  que  use  or  trust,  to  enjoy  the  rents 
and  profits  of  the  land.  The  use  or  trust  is  the  beneficial 
interest  in  and  issuing  out  of  the  land,  while  the  legal  title 
remained  in  the  person  who  was  seised  to  the  use.3     In  a 

1  2  Washb.  on  Real  Prop.  384-386 ;  1  Spence  Eq.  Jur.,  439-442  ;  Chud- 
leigh's  Case,  3  Rep.  123 ;  2  Pomeroy  Eq.  Jur.,  sect.  978. 

2  2  Washb.  on  Real  Prop.  386;  Bac.  Law  Tracts,  315;  Cornish,  Uses,  10. 
The  fidei  commissum  of  the  Roman  law,  however,  could  only  be  created  by 
will,  and  was  designed  to  give  the  beneficial  interest  in  property  to  those  who 
were  otherwise  prohibited  from  taking  as  devisee.  The  testator  would  direct 
the  heir  to  transfer  the  estate  to  the  person  designated.  This  trust  was  then 
enforced  by  the  courts.  It  is,  therefore,  more  proper  to  3ay  that  the  fidei 
commissum  suggested  the  use,  and  the  mode  of  enforcing  it,  than  that  the  use 
is  derived  from  the  Roman  law.  Saunder's  Justinian,  337,  338;  2  Pomeroy 
Eq.  Jur.,  sects.  976,  977. 

3  2  Washb.  on  Real  Prop.  388 ;  2  Bla.  Com.  330 ;  Bac.  Law  Tracts,  307  ; 
Co.  Lit.  271  b,  Butler's  note,  231,  sect.  2 ;  2  Pomeroy  Eq.  Jur.,  sects.  978,  979 ; 
1  Spence  Eq.  Jur.  439-444;  Burgess  v.  Wheate,  1  W.  Bl.  158;  Tud.  Ld„ 
Cas.  252,  253. 

351 


§  440  USES  AND  TRUSTS.  [PART  II. 

court  of  law  he  was  deemed  the  owner,  brought  all  the  ac- 
tions for  the  protection  of  the  property  against  trespass, 
waste  and  disseisin,  and  exercised  generally  the  legal  rights 
of  an  owner.1  He  could  even  maintain  an  action  of  eject- 
ment against  the  cestui  que  use.2  The  rights  of  the  cestui 
que  use  were  not  recognized  in  a  court  of  law.  He  had  no 
standing  in  that  court,  and  only  obtained  an  ample  remedy 
for  the  protection  of  his  estate  when  the  court  of  chancery 
assumed  jurisdiction.3 

§  440.  Enforcement  of  the  use.  —  Before  the  English 
court  of  chancery  acquired  jurisdiction,  the  cestui  que  use 
was  compelled  to  rely  upon  the  good  faith  of  the  feoffee  to 
use,  although  there  is  supposed  to  have  been  an  inefficient 
remedy  in  the  spiritual  or  ecclesiastical  courts.  But  since 
these  courts  had  no  means  of  enforcing  their  decrees,  and 
exerted  only  a  spiritual  influence  over  the  conscience,  the 
cestui  que  use  was  practically  dependent  upon  the  honesty 
of  his  feoffee  to  use.4  The  ecclesiastics  were,  of  course, 
greatly  concerned  in  providing  a  sufficient  remedy  for  their 
protection  and  the  enforcement  of  their  uses.  The  court 
of  chancery  was  at  that  time  entirely  under  their  control, 
for  the  chancellor  and  other  judges  of  the  court  were  almost 
always  appointed  from  the  clergy.  And  being  learned  in 
the  civil  law,  they  readily  found  a  precedent  in  the  enforce- 
ment of  the  fidei  commissa5  of  that  system  of  jurisprudence. 
With  this  precedent  before  him,  John  De  Waltham,  Bishop 

1  Tud.  Ld.  Cas.  252 ;  2  Bla.  Com.  330 ;  1  Spence  Eq.  Jur.  442 ;  Chud- 
leigh's  Case,  1  Rep.  121 ;  2  Pomeroy  Eq.  Jur.  sect.  979 ;  2  Washb.  on  Real 
Prop.  388. 

2  1  Spence  Eq.  Jur.  442 ;  Tud.  Ld.  Cas.  253 ;  Chudleigh's  Case,  1  Rep. 
121. 

3  1  Spence  Eq.  Jur.,  456;  Co.  Lit.  271  b,  Butler's  note,  231,  sect.  2;  Pom. 
Eq.  Jur.,  sects.  979,  980;  Tud.  Ld.  Cas.  252;  Lewin  on  Tr.  3,  4. 

*  1  Spence  Eq.  Jur.  444 ;  Tud.  Ld.  Cas.  252 ;  Bac.  Law  Tracts,  307 
6  1  Spence  Eq.  Jur.  436 ;  Bac.  Law  Tracts,  315. 

352 


<CH.  XIII.]  USES   AND   TRUSTS.  §    441 

of  Salisbury,  Master  of  the  Rolls,  devised  the  "  writ  of 
subpoena,"  returnable  in  chancery,  and  directed  against 
the  feoffee  to  use,  by  which  he  was  made  to  account  under 
oath  to  the  cestui  que  use  for  the  rents  and  profits  he  had 
received  from  the  land.1  This  writ  could  at  first  be  issued 
against  the  feoffee  to  use,  but  not  against  his  heirs  and  as- 
signs. Subsequently  it  was  made  issuable  against  the  heirs 
and  all  alienees  of  the  feoffee,  who  took  with  notice  of  the 
use.2  The  court  of  chancery  then  for  the  first  time  acquired 
complete  jurisdiction  over  uses  and  trusts.  Iromthat  time 
forward,  in  the  exercise  of  that  jurisdiction,  a  set  of  rules 
has  been  established  for  their  interpretation  and  construc- 
tion, which  gave  to  them,  as  nearly  as  it  was  possible  or 
advisable,  the  character  and  incidents  of  legal  estates.3 

§  441.  Distinction  between  uses  and  trusts.  —  Although 
the  words  uses  and  trusts  were  employed  before  the  passage 
of  the  Statute  of  Uses,  as  if  they  were  synonymous;  and 
although  they  may  be  used  interchangeably  when  speaking 
generally  of  these  equitable  estates,  as  they  then  prevailed, 
yet  a  distinction  was  made  between  them  according  to  the 
permanent  or  temporary  character  of  the  estate.  If  the 
right  to  the  rents  and  profits  was  permanent  —  that  is,  of  a 
long  duration —  it  was  called  a  use.  If  the  right  was  only 
of  a  temporary  character,  or  given  only  for  special  pur- 
poses, it  was  designated  a  trust*  A  more  radical  difference 
now  exists  in  the  present  use  of  these  terms,  arising  out  of 

1  1  Spence  Eq.  Jur.  438 ;  2  Washb.  on  Real  Prop.  389 ;  1  Pom.  Eq.  Jur., 
sects.  428-431. 

2  1  Spence  Eq.  Jur.  445;  2  Washb.  on  Real  Prop.  380;  2  Bla.  Com.  329; 
Burgess  v.  Wheate,  1  W.  Bl.  156 ;  2  Pom.  Eq.  Jur.  sect.  980. 

3  2  Washb.  on  Real  Prop.  392 ;  1  Cruise  Dig.  341 ;  1  Spence  Eq.  Jur. 
435;  2  Bla.  Com.  331. 

*  2  Washb.  on  Real  Prop.  398 ;  1  Cruise  Dig.  246 ;  Tud.  Ld.  Cas.  255 ; 
Sand.  Uses,  3,  7 ;  1  Spence  Eq.  Jur.  448. 

23  353 


§  443  USES  AND  TRUSTS.  [PART  II. 

the  change  made  in  equitable  estates  by  the  Statute  of 

Uses. 

§  442.  How  uses   may  be  created  —  By  feoffment. — 

Since  at  common  law  the  ordinary  conveyance  was  feoff- 
ment with  livery  of  seisin,  operating  by  transmutation  of 
possession  and  requiring  no  evidence  in  writing  of  such 
conveyance,  a  use  might  have  been  created  before  the  Stat- 
ute of  Frauds,  when  employing  this  mode  of  conveyance, 
by  a  simple  declaration  of  the  feoffor  at  the  time  that  the 
feoffee  was  to  hold  to  the  use  of  some  other  person.1  The 
Statute  of  Frauds,  however,  requires  uses  and  trusts  as  well 
as  legal  estates  to  be  evidenced  by  some  writing  signed  by 
the  party  to  be  charged.  At  the  present  day,  therefore,  an 
oral  declaration  will  not  be  sufficient  to  raise  a  use.2 

§  443.  Same  —  Resulting  use.  —  As  a  consequence  of 
the  introduction  of  uses,  if  one  makes  a  conveyance  in 
fee  without  receiving  any  good  or  valuable  considera- 
tion, equity,  presuming  that  one  will  not  part  with  a 
valuable  estate  without  receiving  in  return  a  considera- 
tion, held  that  the  beneficial  or  equitable  interest  re- 
mained in  or  resulted  to  the  grantor.  He  was  supposed 
to  have  intended  that  the  use  should  be  reserved  to  him- 
self. This  was  called  a  resulting  use.  It  became,  there- 
fore, a  general  rule  that  a  conveyance  of  the  legal  estate 
in  fee  without  a  consideration  will  not  carry  with  it  the 
beneficial  interest.3  But  where  the  estate  conveyed  was 
less  than  a  fee,  there  was  no  resulting  use,  as  the  duties  and 
liabilities  attached  to  an  estate  for  life,  for  years  and  in  tail, 

1  1  Spence  Eq.  Jur.  449;  2  Washb.  on  Real  Prop.  392;  2  Bla.  Com.  331. 

J  Stat.  29  Car.  ii,  c.3,  sects.  7,  8;  2  Washb.  on  Real  Prop.  600,  501 ;  Saund. 
Uses,  229 ;  Tud.  Ld.  Cas.  266. 

3  2  Washb.  on  Real  Prop.  393;  1  Spence  Eq.  Jur.  451 ;  2  Bla.  Com.  331 ; 
Lloyd  r.  Spillett,  2  Atk.  150 ;  2  Pom.  Eq.  Jur.,  sect.  981 ;  Osborn  v.  Osborn* 
26  N.  J.  Eq.  385. 

354 


CH.  XIII.]  USES   AND   TKUSTS.  §    443 

were  considered  a  sufficient  consideration  to  prevent  the  use 
resulting  to  the  grantor.1  The  use  can  result  only  to  the 
grantor  and  his  heirs.2  And  for  the  purpose  of  carrying 
the  use  to  the  feoffee,  the  smallest  nominal  consideration 
was  sufficient.  It  need  not  be  stated  in  the  deed  if  an  actual 
consideration  had  passed  between  the  parties;  on  the  other 
hand,  if  there  is  an  acknowledgment  of  the  receipt  of  the 
consideration  in  the  deed  of  conveyance,  there  need  be  no 
actual  consideration,  since  the  parties  to  the  deed  will  be 
estopped  from  denying  it.3  Nor  is  a  consideration  neces- 
sary where  the  deed  expressly  declares  to  whose  use  the 
land  shall  be  held.  But  if  only  a  part  of  the  use  is  declared 
by  the  deed,  the  remainder  would  result  to  the  grantor  in 
the  same  manner  as  if  no  use  had  been  limited,  unless  the 
use  declared  is  limited  to  the  grantor,  when  the  remainder 
will  be  in  the  feoffee.4  The  doctrine  of  resulting  uses  has 
been  abolished  by  statute  in  some  of  the  States. 

1  1  Prest.  Est.  192  ;  1  Cruise  Dig.  376 ;  1  Spence  Eq.  Jur.  452 ;  2  Washb. 
Keal  Prop.  396 ;  Tud.  Ld.  Cas.  258. 

2  2  Washb.  on  Real  Prop.  393,  394;  1  Prest  Est.  195;  1  Cruise  Dig  373. 

3  1  Spence  Eq.  Jur.  450,  451;  2  Bla.  Com.  329;  Tud.  Ld.  Cas.  255; 
Lewin  on  Tr.  27;  Squire  v.  Harder,  1  Paige,  494;  Bk.  of  U*  S.  v.  Houseman, 
6  Paige,  526;  Titcomb  v.  Morrill,  10  Allen,  15;  1  Greenl.  on  Ev.  sect.  26; 
Wilkinson  v.  Scott,  17  Mass.  257;  Griswold  v.  Messenger,  6  Pick.  517;  Bragg 
v.  Geddes,  93  111.  39;  Bartlett  v.  Bartlett,  14  Gray,  277;  Gerry  v.  Stimpson, 
60  Me.  186 ;  Wilt  v.  Franklin,  1  Binn.  518 ;  Boyd  v.  McLean,  1  Johns.  Ch. 
582;  Farrington  v.  Barr,  36  N.  H.  86;  Miller  v.  Wilson,  15  Ohio,  108;  Phil- 
brook  v.  Delano,  29  Me.  410;  Maigly  v.  Hauer,  7  Johns.  341;  Shepherds. 
Little,  14  Johns.  210 ;  Morse  v.  Shattuck,  4  N.  H.  229 ;  2  Washb.  on  Real 
Prop.  394;  Gould  v.  Linde,  114  Mass.  366;  Graves  v.  Graves,  29  N.  H.  129; 
Cairns  v.  Colburn,  104  Mass.  274. 

*  1  Spence  Eq.  Jur.  449,  511 ;  2  Bla.  Com.  329;  Lloyd  v.  Spillett,  2  Atk. 
150;  Bac.  Law  Tracts,  317;  Sand.  Uses,  103,  104,  142;  Co.  Lit.  23  a;  Tud. 
Ld.  Cas.  258;  1  Prest.  Est.  191,  195;  Pibus  v.  Mitford,  1  Ventr.  372 ;  Tip- 
ping v.  Cozzens,  1  Ld.  Raym.  33 ;  Volgen  v.  Yates,  6  Seld.  223 ;  Farrington, 
v.  Barr,  30  N.  H.  88 ;  Sir  Edw.  Clerc's  Case,  6  Rep.  17 ;  Kennistonv.  Leighton, 
53  N.  H.  311 ;  Graves  v.  Graves,  9  Fost.  129;  Sprague  v.  Woods,  4  Watts  & 
S.  192 ;  Walker  v.  Walker,  2  Atk.  68 ;  Lampleigh  v.  Lampleigh,  1  P.  Wms. 
112;  St.  John  v.  Benedict,  6  Johns.  Ch.  116;  Capen  v.  Richardson,  7  Gray, 
370;    Altham  v.  Anglesea,  11  Mod.  210;    Boyd  v.  McLean,  1  Johns.   Ch. 

355 


§  445  USES  AND  TRUSTS.  [PART  II. 

§  444.  Same  —  By  simple  declarations.  —  Not  only  could 
uses  be  raised  by  a  declaration  to  that  effect,  made  in  con- 
nection with  a  feoffment  or  other  common-law  conveyance, 
as  above  explained,  but  also  by  a  simple  declaration  made 
by  the  legal  owner  that  he  held  the  land  to  the  use  of  an- 
other. But  since  a  court  of  equity  lends  its  aid  only  to  the 
prevention  of  an  injury  or  wrong  (injuria),  and  will  not 
enforce  mere  voluntary  obligations,  these  declarations,  when 
made  independently  of  a  common-law  conveyance,  had  to 
rest  upon  a  consideration,  in  order  that  they  might  be  en- 
forced. If  the  declaration  was  made  to  a  stranger  a  val- 
uable consideration  was  required,  but  it  need  not  be  a 
substantial  one ;  while  in  the  case  of  a  declaration  to  a  near 
blood-relation,  a  good  consideration,  natural  love  and  affec- 
tion, would  answer.1  And  under  this  rule  equity  always  con- 
strued a  contract  of  sale  or  agreement  to  convey  as  a 
declaration  to  uses,  and  would  enforce  it  if  the  requisite 
consideration  was  present.2 

§  445.  Who  might  he  feoffees  to  use  and  cestuis  que 
use.  — As  a  general  proposition,  all  persons  who  could  be 
grantees  in  a  common-law  conveyance  can  be  either  feoffees 
to  use  or  cestuis  que  use,  infants  and  married  women  not 
excepted.  The  married  woman,  as  feoffee  to  use,  would 
hold  the  legal  estate  free  from  any  attaching  rights  of  her 
husband,  and,  as  cestui  que  use,  enjoy  the  beneficial  interest 
as  freely  as  if  she  were  single.  Her  husband  acquires  no 
rights  in  the  equitable  estate,  since  they  attach  and  relate 
to  only   legal   estates.3     Corporations    can   be  cestuis  que 

582 ;  Peabody  v.  Tarbell,  2  Cush.  232  ;  Adams  v.  Savage,  2  Salk.  G79 ;  Raw- 
ley  v.  Holland,  2  Eq.  Cas.  Abr.  753 ;  1  Cruise  Dig.  376 ;  Roe  v.  Popham, 
Dougl.  (Mich.),  25. 

1  2  Bla.  Com.  329;  Co.  Lit.  271  b,  Butler's  note,  231 ;  Tud.  Ld.  Cas.  268; 
1  Spence  Eq.  Jur.  450 ;  2  Washb.  on  Real  Prop.  394,  395. 

2  2  Washb.  on  Real  Prop.  397 ;  1  Spence  Eq.  Jur.  452,  453. 

3  Tud.  Ld.  Cas.  254;  4  Kent's  Com.  293;  Egerton  v.  Brownlow,  4  H.  L. 
Cas.  206;    Saund.  Uses,  349;  Hill,  Trust.  52;  Pinson  v.  Ivey,  1  Yerg.  325; 

356 


CH.  XIII.]  USES   AND    TRUSTS.  §    447 

use.1  It  was  formerly  held  that  corporations  could  not  be 
feoffees  to  use,  it  being  supposed  impossible  to  enforce  the  per- 
formance of  the  use  on  account  of  the  intangible,  soulless 
character  of  the  corporation.  That  doctrine  has  now  been 
exploded,  and  courts  of  equity  can  enforce  their  decrees  just 
as  effectively  against  corporations  as  against  natural  per- 
sons. It  is,  therefore,  the  prevailing  rule  in  this  country 
that  corporations  may  hold  lands  as  feoffees  to  use,  provided 
the  limitations  of  their  charters  do  not  make  such  a  convey- 
ance foreign  to  the  purposes  of  their  creation.2 

§  446.  What  might  be  conveyed  to  uses.  —  Every  species 
of  real  property,  which  is  comprehended  under  the  terms 
lends  tenements  and  hereditaments,  both  corporeal  and  in- 
corporeal, may  be  the  subject  of  conveyance  to  uses.3  At 
an  early  period  it  was  held  necessary  for  the  grantor  to  be 
possessed  of  an  estate  of  which  seisin  could  be  predicated, 
in  order  that  a  use  might  be  created  out  of  it.4  But  this 
doctrine  has  long  since  been  abandoned,  and  chattels,  both 
real  and  personal,  can  now  be  settled  to  uses.  But  since  a 
mortgage  is  treated  in  equity  as  a  lien  instead  of  an  estate 
in  lands,  there  can  be  no  conveyance  of  it  to  uses.6 

§  447.  Incidents  of  uses.  —  As  uses,  considered  as 
estates  in  lands,  were  the  mere  creatures  of  equity,  and 
acquired  in  the  early  days  of  their  existence  no  actual  rec- 

Springer  v.  Berry,  47  Me.  338 ;  Claussen  v.  La  Franz,  1  Iowa,  237 ;  2  Washb. 
on  Real  Prop.  391,  392;  1  Cruise  Dig.  340.  It  is  here  meant  that  the 
husband's  rights  during  coverture  do  not  attach  to  the  wife's  equitable  estate. 
But  he  has  curtesy  in  such  estates,  unless  expressly  excluded.  See  ante,  sect. 
105. 

1  1  Cruise  Dig.  354  ;  2  Washb.  on  Real  Prop.  391 ;  Tud.  Ld.  Cas.  254. 

2  Ang.  &  Ames  on  Corp.,  ch.  II.,  sects.  6-8;  2  Washb.  on  Real  Prop.  391 ; 
Vidal  v.  Girard,  2  How.  127 ;  Sutton  v.  Cole,  3  Pick.  232 ;  Phillip's  Academy 
v.  King,  12  Mass.  546. 

8  2  Washb.  on  Real  Prop.  391 ;  2  Bla.  Com.  331. 
*  2  Bla.  Com.  331 ;  1  Cruise  Dig.  340;  Tud.  Ld.  Cas.  259. 
5  2  Washb.  on  Real  Prop.  408 ;  Merrill  v.  Brown,  12  Pick.  220. 

357 


§  448  USES  AND  TRUSTS.  [PART  II. 

ognition  in  a  court  of  law,  the  court  of  chancery,  in  estab- 
lishing rules  for  the  government  and  construction  of  them, 
while  following  to  some  extent  the  analogies  of  the  law  in 
relation  to  legal  estates,  adopted  only  such  rules  of  the  com- 
mon law  as  were  consistent  with  the  intended  character  of 
this  equitable  estate.  It,  therefore,  discarded  the  doctrines 
of  feudal  tenure  and  seisin  altogether.  Nor  did  the  court 
recognize  in  uses  the  rights  of  dower  and  curtesy.  Uses 
were  also  held  to  be  not  liable  to  levy  and  sale  under  exe- 
cution ;  nor  were  they  forfeited  to  the  crown  upon  attainder 
until  the  statute  of  33  Hen.  VIII.,  ch.  20,  sect.  2.'  But 
they  were  descendible  to  the  heirs,  in  conformity  with  the 
common  law  of  descent.2 

§  448.  Alienation  of  uses.  —  For  the  same  reasons,  the 
restrictions  imposed  upon  the  common-law  power  of  aliena- 
tion were  not  applied  to  uses.  There  is  no  limitation  upon 
the  alienation  of  uses,  except  that  imposed  by  the  Statute 
of  Frauds.  Before  the  passage  of  that  statute  no  formal 
assignment  in  writing  was  required  ;  a  simple  direction  to 
the  trustee  to  pay  over  the  rents  and  profits  to  the  assignee 
was  sufficient.  These  directions  the  trustee  was  bound  to 
follow,  and  obedience  could  be  enforced  in  like  manner  as 
in  the  case  of  the  original  cestui  que  use.3  But  the  assign- 
ment of  the  use  necessarily  had  no  effect  upon  the  legal 
estate  in  the  trustee,  unless  he  joined  in  the  conveyance.4 
And  then  the  formalities  required  in  all  common-law  con- 

1  2  Washb.  on  Real  Prop.  395,  399 ;  1  Spence  Eq.  Jur.  455,  456,  460 ;  1 
Washb.  on  R.eal  Prop.  297;  2  Bla.  Com.  331;  Jackson  v.  Catlin,  2  Johns. 
261.  Uses  are  now  very  generally  held  to  be  subject  to  the  husband's  right  of 
curtesy.     See  ante,  sect.  105. 

2  2  Bla.  Com.  329 ;  1  Spence  Eq.  Jur.  454. 

3  1  Cruise  Dig.  342;  1  Spence  Eq.  Jur.  454.  The  Statute  of  Frauds 
required  all  trusts  and  confidences  to  be  proved  by  some  writing.  29  Car.  IL, 
ch.  3. 

*  2  Washb.  on  Real  Prop.  39G  ;  2  Bla.  Com  331. 

358 


CH.  XIII.]  USES    AND    TRUSTS.  §    450 

veyances  must  have  been  complied  with  in  order  to  pass  the 
legal  estate. 

§  449 .  Estates  capable  of  being  created  in  uses.  —  When 
one  has  an  unlimited  use,  i.e.,  a  use  in  fee,  whether  alone 
or  merged  in  the  legal  estate,  there  is  no  limitation  upon 
the  number  and  kinds  of  estates  which  might  be  carved  out 
of  it.  Not  only  may  all  the  estates  known  in  the  common 
law  be  created,  such  as  in  tail,  for  years,  for  life,  in  re- 
mainder vested  or  contingent,  upon  condition  and  upon  lim- 
itation,1 but  other  estates  arid  interests  may  be  limited 
which  are  unknown  to  the  common  law,  and  violate  its  most 
inflexible  rules.  Thus  an  estate  in  freehold  in  the  use  may 
be  created  to  commence  in  the  future  without  a  particular 
estate  to  support  it,  whether  it  be  vested  or  contingent. 
Or  the  grantor  may  limit  the  use  in  such  a  manner  as  to 
pass  from  one  to  another  upon  the  happening  of  a  contin- 
gency ;  or  he  may  reserve  to  himself  or  grant  to  another 
the  power  to  divest  the  present  cestui  que  use  and  vest  the 
use  in  another  to  be  appointed,  or  simply  by  such  destruc- 
tion of  the  prior  use  to  cause  the  use  to  revert  to  the  grantor. 
These  limitations  were  impossible  at  common  law.2  And  in 
construing  the  limitations  of  uses,  the  strict  technical  rules 
are  not  observed,  the  intention  governing  in  each  case.  A 
fee  might,  therefore,  be  created  in  the  use  without  an  ex- 
press limitation  to  heirs,  if  the  intention  to  create  such  an 
estate  is  manifested  in  any  other  way.3 

§  450.  Disposition  of  uses  by  will.  —  Under  the  feudal 
system  lands  could  not  be  disposed  of  by  will.     But  uses 

1  1  Spence  Eq.  Jur.  455 ;  1  Cruise  Dig.  343 ;  2  Washb.  on  Real  Prop.  397 

2  2  Washb.  on  Real  Prop.  397,  398;  1  Cruise  Dig.  343;  1  Spence  Eq.  Jur. 
455;  Chudleigh's  Case,  1  Rep.  135;  Shelley's  Case,  1  Rep.  101;  Fearne 
Cont.  Rem.  284. 

8  1  Spence  Eq.  Jur.  452 ;  Td.  Lud.  Cas.  253 ;  2  Washb.  on  Real  Prop. 
395. 

359 


§  451  USES  AND  TRUSTS.  [PART  II ► 

were  held  to  be  capable  of  devise  without  limitation  ;  and 
until  the  passage  of  the  Statute  of  Wills,  32  Hen.  VIII., 
which  made  lands  devisable  by  law,  as  they  were  under  the 
Saxon  law  before  the  Norman  conquest,  it  was  a  common 
custom  to  convey  lands  to  the  use  of  the  grantor,  which  he 
could  then  dispose  of  by  will  as  well  as  by  deed.  The  Stat- 
ute of  Wills  obviated  the  necessity  of  such  a  conveyance  in 
respect  to  all  persons  who  were  empowered  by  that  statute 
to  devise  lands.  As  married  women  were  expressly  excluded 
from  the  benefit  of  the  statute,  this  practice  of  conveying 
to  uses  to  enable  a  disposition  by  will  still  obtained  as  to 
them.  The  will  in  such  cases  only  operates  as  an  assign- 
ment or  devise  of  the  use,  or,  if  it  be  executed  by  means  of 
a  power  of  appointment,  as  a  declaration  or  appointment  of 
a  use,  and  the  legal  estate  remains  unaffected  in  the  hands 
of  the  trustee.  But  in  chancery  the  equitable  interests  thus 
acquired  by  the  devisee  would  receive  as  complete  a  protec- 
tion as  those  of  an  assignee  or  grantee  inter  vivos.1 

§  451.  How  lost  or  defeated.  —  The  enforcement,  and 
nence  the  validity  of  a  use  depends  upon  a  privity  of  estate 
and  person,  existing  between  the  feoffee  and  cestui  que  use 
in  relation  to  the  land.  Before  the  Statute  of  Uses  any  act 
of  the  feoffee  by  which  this  privity  was  destroyed  would 
defeat  the  use  also.  If  the  feoffee  lost  his  seisin  by  being 
disseised,  or  he  disposed  of  the  land  by  deed  to  a  purchaser 
for  consideration  and  without  notice  of  the  use,  the  use 
would  be  defeated,  whether  it  was  vested  or  contingent,  in 
possession  or  in  remainder.  But  a  conveyance  to  one  with 
notice,  or  without  consideration,  or  a  descent  of  the  lands 
to  the  heirs  of  the  feoffee,  would  not  affect  the  use.  The 
use  could  still  be  enforced  against  the  assignee  or  heir.2 

1  Co.  Lit.  271  b,  Butler's  note,  231 ;  Tud.  Ld.  Cas.  268 ;  2  Bla.  Com. 
329 ;  2  Washb.  on  Real  Prop.  395,  396 ;  6  Cruise  Dig.  3,  4. 

2  Co.  Lit.  371  b,  Butler's  note,  231,  sect.  2 ;  Tud.  Ld.  Cas.  254 ;  Lewin 
on  Tr.  2 ;    2  Wasbb.  on  Real  Rrop.  389,  400 ;  1  Spence  Eq.  Jur.  456 ;  Chud- 

360 


CH.  XIII.]  USES   ASTD   TRUSTS.  §    451 

Where  the  feoffee  was  disseised,  he  alone  could  recover  the 
seisin  according  to  the  common  law,  and  the  cestui  que  use 
could  not  enforce  the  use  against  the  disseisor.  And,  al- 
though even  now  the  disseisin  of  the  trustee  is  likewise  a 
disseisin  of  the  cestui  que  use,  and,  \l  continued  for  a  suffi- 
cient length  of  time,  would  bar  both  the  equitable  and  legal 
estates,  yet  at  present  the  cestui  que  use  may,  upon  his  own 
motion,  and  without  the  co-operation  of  his  trustee,  have 
the  disseisor  declared  a  trustee,  holding  the  legal  estate  sub- 
ject to  the  use.1 

leigh's  Case,  1  Rep.  120;  Dennis  v.  McOagg,  32  111.  445;  Hallett  v.  Collins, 
10  How.  174;  Den  v.  Troutman,  7  Ired.  155;  Burgess  v.  Wheate,  1  W.  BL 
156.  Cholmondely  v.  Dlinton,  2  Meriv.  358. 

1  See  preceding  note;  1  Spence  Eq.  Jur.  501;  1  Cruise  Dig.  403. 

361 


section  n. 

USES  UNDER  THE   STATUTE  OF  USES. 

Section  459.  History  of  the  Statute  of  Uses. 

460.  "When  statute  will  operate. 

461.  A  person  seised  to  a  use  and  in  esse. 

462.  Freehold  necessary. 

463.  Use  upon  a  use. 

464.  Feoffee  and  cestui  que  use  —  Same  person. 

465.  A  use  in  esse. 

466.  Cestui  que  use  in  esse. 

467.  Words  of  creation  and  limitation. 

468.  Active  and  passive  uses  and  trusts. 

469.  Uses  to  married  women. 

470.  Cases  in  which  the  statute  will  not  operate. 

§  459.  History  of  the  Statute  of  Uses.  —  As  has  been 
stated  in  the  preceding  section,  uses  became  a  very  common 
mode  of  limiting  estates.  In  consequence  of  the  equitable 
and  uncertain  character  of  the  use,  and  its  freedom  from 
the  burdens  of  common-law  estates,  its  popularity  gave  rise 
to  the  constant  perpetration  of  frauds  upon  the  legal  rights 
of  others.  "  Heirs  were  unjustly  inherited;  the  king  lost 
his  profits  of  attainted  persons,  aliens  born,  and  felons  ; 
lords  lost  their  wards,  marriages,  reliefs,  heriots,  escheats, 
aids ;  married  men  lost  their  tenancies  by  the  curtesy,  and 
women  their  dower ;  purchasers  were  defrauded ;  no  one 
knew  against  whom  to  bring  his  action,  and  manifest  per- 
juries were  committed."1  Several  attempts  were  made  by 
the  enactment  of  statutes  to  check  these  abuses,  notably  a 
statute  in  the  reign  of  Richard  III.  (1  R.  III.,  ch.  1),  but 
to  no  avail.  Means  of  avoiding  the  operation  of  these 
statutes  were   soon   discovered,  and   the   abuses  were  as 

1  1  Sugd.  Pow.,  (ed.  1856),  78. 
362 


CH.  XIII.]      USES   UNDER  THE   STATUTE   OF   USES.  §    459 

grievous  after  as  they  were  before  their  enactment.  Fi- 
nally the  statute  of  27  Hen.  VIII.,  ch.  10,  the  celebrated 
Statute  of  Uses,  was  passed  by  parliament.1  The  evident 
intention  of  the  legislator  was  to  abolish  the  doctrine  of 
uses  altogether  by  the  statutory  transfer  of  the  legal  estate 
from  the  feoffee  to  use  to  the  cestui  que  use  in  every  case, 
whatever  may  be  the  limitations  upon  the  use.  But  the 
statute  met  with  the  most  determined  opposition  from  the 
bench  and  bar.  Notwithstanding  the  many  alleged  frauds 
which  could  be  committed  by  an  abuse  of  the  doctrine, 
public  sentiment  was  opposed  to  its  absolute  destruction, 
and  was  in  favor  of  preserving  the  power  of  creating  an 
equitable  estate  in  the  nature  of  a  use.     And  notwithstand- 

1  The  statute  enacted  that  "  where  any  person  or  persons  stood  or 
were  seized,  or  at  any  time  thereafter  should  happen  to  be  seized,  of  and  in 
any  honours,  castles,  manors,  lands,  tenements,  rents,  services,  reversions,  re- 
mainders, or  other  hereditaments,  to  the  use,  confidence  or  trust  of  any  other 
person  or  persons,* or  of  any  body  politic,  by  reason  of  any  bargain,  sale, 
feoffment,  fine,  recovery,  covenant,  contract,  agreement,  will  or  otherwise,  by 
any  manner  of  means  whatsoever  it  be ;  that  in  every  such  case  all  and  every 
such  person  and  persons  and  bodies  politic,  that  have  or  hereafter  shall  have, 
any  such  use,  confidence  or  trust,  in  fee  simple,  fee  tail,  for  term  of  life,  or  for 
years  or  otherwise,  or  any  use,  confidence  or  trust  in  remainder  or  reverter, 
shall  from  henceforth  stand  and  be  seized,  deemed  and  adjudged  in  lawful 
seisin,  estate  and  possession,  of  and  in  the  same  honours,  castles,  manors, 
lands,  tenements,  rents,  services,  reversions,  remainders,  or  other  heredita- 
ments, with  their  appurtenances,  to  all  intents,  constructions  and  purposes  in 
the  law,  of  and  in  such  like  estates  as  they  had  or  shall  have  in  the  use,  confi- 
dence or  trust  of  or  in  the  same ;  and  that  the  estate,  title,  right  and  posses- 
sion, that  was  in  such  person  or  persons,  that  were  or  hereafter  shall  be  seized 
of  any  lands,  tenements  or  hereditaments  to  the  use,  confidence  or  trust  of  any 
such  person  or  persons,  or  of  any  body  politic,  be  from  henceforth  clearly 
deemed  and  adjudged  to  be  in  him  or  them  that  have  or  hereafter  shall  have 
such  use,  confidence  or  trust,  after  such  quality,  manner,  form  and  condition 
as  they  had  before,  in  or  to  the  use,  confidence  or  trust  that  was  in  them."  This 
statute  has  either  been  adopted  in  the  different  States  of  this  country  as  part 
•of  the  common  law,  or  substantially  re-enacted,  so  that  it  prevails  generally 
throughout  the  United  States.  2  Pom.  Eq.  Jur.,  sect.  530,  note  1 ;  Perry  on  Tr. 
U99 ;  Guest  v.  Farley,  19  Mo.  147 ;  Booker  v.  Carlisle,  14  Bush,  154  ;  Sherman  v. 
Dodge,  28  Vt.  26,  31 ;  Bryan  v.  Bradley,  16  Conn.  474  ;  Bowman  v.  Long,  26 
Ga.  142;  McNab  v.  Young,  81  111.  11 ;  Gorham  v.  Daniels,  23  Vt.  600. 

363 


§    461  USES   UNDER  THE    STATUTE   OF  USES.       [PAET  II - 

ing  the  remedial  character  of  the  statute,  it  received  at  the- 
hands  of  the  profession  a  strict  and  technical  construction, 
and  was  permitted  to  operate  only  so  far  as  it  was  impossi- 
ble to  render  nugatory  its  express  provisions.  Instead  of 
destroying  uses,  the  statute  only  established  them  upon  a 
firmer  basis.  By  a  remarkable  course  of  judicial  construc- 
tion —  it  was  practically  legislation  —  the  modern  doctrine 
of  trusts  arose,  which  obtains  to  this  day,  and  which  includes 
every  species  of  equitable  estate  which,  under  the  statute,, 
is  capable  of  creation  without  being  merged  into  the  legal 
estate. 

§  460.  When  statute  will  operate.  —  The  Statute  of  Uses- 
will  only  operate  upon  a  conveyance  to  uses,  and  transfer 
the  legal  to  the  holder  of  the  equitable  title,  when  the  fol- 
lowing three  elements  are  present :  First,  a  person  seised  to 
a  use,  and  in  esse;  second,  a  cestui  que  use  in  esse  ;  and  third, 
a  use  in  esse.1 

§  461.  A  person  seised  to  a  use  and  in  esse.  —  Any  per- 
son who  was  capable  of  being  seised  before  the  statute 
would  satisfy  the  requirements.  And  although  at  first  it 
was  supposed  and  held,  that  aliens  and  corporations  could 
not  be  seised  to  uses,  at  the  present  day  there  is  no  such 
restriction.  In  regard  to  alien  feoffees  to  use,  the  general 
rules  of  equity  relating  to  trusts  will  apply,  and  prevent  the 
failure  of  the  use  because  of  their  incapacity  to  hold  the 
seisin.2  And  in  this  country  corporations  are  included 
under  the  term  "  persons,"  and  may  be  seised  to  uses  if 
the  limitations  of  their  charters  permit  of  such  holding.3 

1  1  Cruise  Dig.  349 ;  2  Washb.  on  Keal  Prop.  407. 

2  2  Washb.  on  Real  Prop.  408 ;  1  Cruise  Dig.  349 ;  Bac.  Law  Tracts,  347, 
348. 

3  Sutton  v.  Cole,  3  Pick.  240;  U.  S.  v.  Araedy,  11  Wheat.  392;  Vidal  i>. 
Girard,  2  How.  127;  Phillip's  Academy  v.  King,  12  Mass.  546;  Ang.  & 
Ames  on  Corp.,  ch.  V.,  sects.  6-8 ;  Greene  v.  Dennis,  6  Conn.  293 ;  First  Cong,.. 

364 


<CH.  XIII.]      USES   UNDER  THE   STATUTE   OF   USES.  §    462 

But  the  person  seised  must  be  in  esse.  If  by  reason  of  the 
limitations  of  the  conveyance  the  feoffee  to  use  is  uncertain, 
as  he  would  be  if  the  legal  estate  upon  which  the  use  de- 
pends is  a  contingent  remainder,  the  statute  cannot  operate 
until  the  contingency  happens,  upon  which  the  remainder 
becomes  vested.1 

§  462.  Freehold  necessary.  —  Seisin  cannot  be  predicated 
of  leasehold  estates.  In  order,  therefore,  that  the  statute 
may  take  effect,  the  estate  in  the  feoffee  to  use  must  be  a 
freehold.  All  leaseholds  held  to  uses  remain  unexecuted  as 
before  the  statute,  and  the  uses  are  enforceable  only  in  a  court 
of  equity.  It  was  once  supposed  that  the  freehold  must  be 
.greater  than  a  life  estate;  but  it  is  now  held  that  any  free- 
hold estate  is  sufficient,  including  life  estates  and  all  estates 
of  inheritance.2  If  the  freehold,  upon  which  the  use  de- 
pends, is  not  commensurate  with  the  use,  the  use  will  be 
valid,  and  will  be  executed,  only  as  far  as  the  legal  estate 
-extends.  If  the  legal  estate  in  the  feoffee  is  only  a  life 
estate,  the  use  is  good  only  for  that  time,  even  though  the 

Soc.  v.  Atwater,  23  Id.  34 ;  Mayor,  etc.,  v.  Elliott,  3  Rawle,  170 ;  Bethlehem 
Borough  v.  Perseverance  Fire  Co.,  81  Pa.  St.  445 ;  Trustees,  etc.,  v.  King,  12 
Mass.  546-553 ;  First  Parish,  etc.,  v.  Cole,  3  Pick.  232-237 ;  Wade  v.  Am.  Ool. 
Soc,  7  Smed.  &  M.  697 ;  Ayres  ».  M.  E.  Church,  3  Sandf.  351 ;  Matter  of 
Howe,  1  Paige,  214.  But  if  the  use  or  trust  is  foreign  to  the  purposes  of  its 
institution,  the  corporation  cannot  hold  the  seisin  or  legal  estate.  A  new 
trustee  must  be  appointed  to  take  its  place.  Matter  of  Howe,  1  Paige,  214 ; 
Sloan  v.  McConahy,  4  Ohio,  157 ;  Jackson  v.  Hartwell,  8  Johns.  422 ;  Trustees, 
etc.,  v.  Peaalee,  15  N.  H.  317 ;  Chapin  v.  School  Dist.,  36  N.  H.  445;  Farmer's 
Loan,  etc.,  Co.  v.  Carroll,  5  Barb.  613;  Bliss  v.  Am.  Bible  Soc,  2  Allen,  334; 
Montpelier  v.  East  Montpelier,  29  Vt.  12;  Mason  v.  M.  E.  Church,  27  N.J. 
Eq.  47. 

1  2  Waahb.  on  Real  Prop.  408 ;  Bac  Law  Tracts,  349. 

2  1  Cruise  Dig.  350,  351,  353;  Tud.  Ld.  Cas.  257-259;  Galliers  v.  Moss,  9 
B.  &  C.  267 ;  1  Prest.  Est.  190 ;  1  Spence  Eq.  Jur.  466-490 ;  Ashhurst  v.  Giv- 
ens,  5  Watts  &  S.  327;  Merrill  v.  Brown,  12  Pick.  220;  Gilbertson  v.  Richards, 
6  H.  &  N.  454;  Franciscus  v.  Reigart,  4  Watts,  118;  2  Pom.  Eq.  Jur.  984; 
Hopkins  v.  Hopkins,  1  Atk.  691 ;  2  Washb.  on  Real  Prop.  408,  409. 

365 


§    463  USES    UNDER    THE    STATUTE    OF   USES.        [PART  II. 

limitation  of  the  use  be  in  terms  a  fee  simple.1  But  it  is 
probable  at  the  present  clay  that  the  rule  would  be  so  far 
relaxed  as  to  make  the  legal  estate  by  construction  co-ex- 
tensive with  the  use,  unless  a  smaller  estate  is  expressly 
limited,  in  conformity  with  the  rule  governing  the  same 
question  in  its  connection  with  the  doctrine  of  trusts.2. 
And  an  estate  tail  has  been  held  sufficient  to  support  a  use 
in  fee  simple.3 

§  463.  Use  upon  a  use.  —  Since  seisin  requires  a  legal 
estate,  and  the  person,  out  of  whom  the  legal  estate  is  to 
be  drawn  by  the  statute  and  transferred  to  the  cestui  que 
use,  was  required  to  be  seised,  the  courts  have  held  that  the 
statute  can  only  execute  the  first  use,  and  can  have  no  effect 
upon  the  second  or  other  use  depending  upon  the  first.  For 
example,  an  estate  is  limited  to  the  use  of  A.  to  the  use  of 
B.  The  statute  can  execute  the  use  '  i  A.,  but  cannot  go 
further  and  transfer  the  legal  estate  to  B.,  the  final  and 
actual  cestui  que  use,  because  by  the  strict  construction  of 
the  statute  the  legal  estate  can  only  pass  from  persons  who 
were  seised  in  the  legal  estate  under  the  deed.  A.  had  only 
a  use,  and  therefore  was  not  seised.  But  inasmuch  as  after 
the  execution  of  the  use  the  cestui  que  use  was  to  hold  the 
legal  estate  in  "  such  quality,  manner,  form  and  condition  " 
as  he  had  in  the  use,  A.  in  the  case  supposed  would  hold 

1  Tud.  Ld.  Cas.  259;  Sandf.  on  Uses,  109;  Jenkins  v.  Young,  Cro.  Car. 
230;  2  Washb.  on  Eeal  Prop.  409. 

2  Doe  v.  Nichols,  1  B.  &  C.  336 ;  Doe  v.  Ewart,  7  A.  &.  E.  636 ;  Norton  v. 
Norton,  2  Sandf.  296 ;  Barker  v.  Greenwood,  4  M.  &.  \V.  421 ;  Adams  v. 
Adams,  6  Q.  B.  860;  Att'y-Gen.  v.  Props.,  etc.,  3  Gray,  48;  Cleveland  v.  Hal- 
lett,  6  Cush.  407;  Farquharson  w.  Eichelberger,  15  Md.  73;  Coulter  v.  Robert- 
son,  24  Miss.  278;  Ward  v.  Amory,  1  Curt.  C.  Ct.  419;  Morton  v.  Barrett,  22 
Me.  257;  Smith  v.  Metcalf,  1  Head,  64;  Renzichausen  v.  Keyser,  48  Pa.  St. 
351.     See;jos*,  sect.  504. 

3  1  Cruise  Dig.  352 ;  2  Washb.  on  Real  Prop.  409. 

366 


CH.  XIII.]      USES   UNDER  THE   STATUTE   OF  USES.  §    464 

the  legal  estate  to  the  use  of  B.,  and  accountable  to  B.  in 
equity  for  the  rents  and  profits.1 

§  464.  Feoffee  and  cestui  que  use  —  Same  person. — 

Where  the  feoffee  to  use  and  the  cestui  que  use  are  the  same 
person,  there  is  a  merger  of  the  equitable  in  the  legal  estate 
without  the  aid  of  the  Statute  of  Uses.  He  takes  an  abso- 
lute estate  at  common  law,  unless  such  a  merger  would  de- 
feat the  purposes  of  the  conveyance.2  Nor  would  there  be 
a  merger,  if  the  use  to  the  feoffee  was  not  as  extensive  as 
the  legal  estate  which  is  conveyed  to  him,  as  where  the  es- 
tate is  a  fee,  and  his  use  is  a  life  interest,  or  he  takes  the 
use  jointly  with  another.     In  such  cases  the  use  could  only 


1  2  Washb.  on  Real  Prop.  406,  409,  457, 460, 461 ;  Tyrrell's  Case,  Dyer,  155, 
1  Co.  Rep.  136  b,  187 ;  Croxall  v.  Shererd,  5  Wall.  282 ;  Wyman  v.  Brown,  50 
Me.  157 ;  Hopkins  v.  Hopkins,  1  Atk.  591 ;  Willett  v.  Sandford,  1  Ves.  sr. 
186;  2  Pom.  Eq.  Jur.,  sect.  985.  The  rule  above  enunciated,  that  a  use  can- 
not be  limited  upon  a  use,  has  been  abolished  by  statute  in  New  York,  Cali- 
fornia, Michigan,  Minnesota,  and  Wisconsin.  See  post,  sect.  470,  note.  And 
it  has  also  been  disapproved  and  adversely  commented  on  by  the  Massachusetts 
court.  Thatcher  v.  Omans,  3  Pick.  521,  528.  But  it  is,  perhaps,  generally  rec- 
ognized in  this  country  wherever  it  has  not  been  changed  by  statute.  And, 
basing  their  conclusions  upon  this  doctrine,  the  courts  have  held  that  wherein 
a  deed  of  bargain  and  sale  the  estate  is  limited  to  the  bargainee  to  the  use  of 
another,  it  is  such  a  use  upon  a  use  as  will  not  be  executed  by  the  statute. 
See  Guest  v.  Farley,  19  Mo.  147  ;  Jackson  v.  Myers,  3  Johns.  388,  396 ;  Jackson 
v.  Cary,  16  Johns.  302 ;  Croxall  v.  Shererd,  supra ;  Price  v.  Sisson,  2  Beas. 
168.  This  is,  however,  only  the  case  with  a  pure  bargain  and  sale  deed.  When 
such  a  limitation  occurs  in  a  modern  deed  of  conveyance,  which  might  be 
treated  as  a  common-law  conveyance,  as  well  as  a  bargain  and  sale,  and  such 
is  supposed  to  be  the  case  where  the  operative  words  are  "  grant,  bargain  and 
sell,"  or  "give,  grant,  bargain  andsell,"  the  use  would  presumably  be  executed 
by  the  statute,  the  bargainee  or  grantee  having  acquired  the  seisin  and  the 
legal  estate  by  force  of  the  deed,  as  a  common-law  conveyance.  See  post, 
sect.  782. 

2  2  Prest.  Conv.  481 ;  Co.  Lit.  271  b,  Butter's  note,  231 ;  1  Cruise  Dig.  354 ; 
Tud.  Ld.  Cas.  257 ;  Jackson  v.  Gary,  16  Johns.  302 ;  Jenkins  v.  Young,  Cro. 
Car.  231 ;  Sammes'  Case,  13  Rep.  56;  Doe  v.  Passingham,  6  B.  &  C.  305,  317: 
Orne's  Case,  L.  R.  8  C.  P.  281. 

367 


§    465  USES  UNDER  THE   STATUTE   OF   USES.       [PART   II. 

be  executed  by  the  statute.1  But,  nevertheless,  if  a  use  is 
limited  upon  the  use  of  the  feoffee,  it  will  be  construed  such 
a  limitation  of  a  use  upon  the  use  as  to  preclude  the  execu- 
tion of  the  second  use.  Thus,  in  a  conveyance  to  A.  to  the 
use  of  A.  to  the  use  of  B.,  although,  in  the  absence  of  the 
use  to  B.,  A.  would  have  been  held  to  be  in  possession  of  the 
legal  estate  at  common  law  by  the  merger  of  the  equitable 
in  the  legal  estate,  yet  this  express  limitation  to  his  use  will 
prevent  the  operation  of  the  statute  upon  the  use  in  B.  A. 
would  hold  the  legal  estate,  and  the  use  in  B.  would  remain 
unexecuted.2  In  some  of  the  States  this  doctrine  concern- 
ing the  effect  of  a  use  upon  a  use  has  been  abolished  by 
statute,  and  the  legal  title  is  made  to  pass  through  all  the 
intermediate  cestuis  que  use  until  the  final  and  actual  bene- 
ficiary is  reached,  when  it  becomes  vested  in  him.3 

§  465.  A  use  in  esse.  — It  matters  not  whether  the  use 
is  one  in  possession,  reversion,  or  remainder,  if  the  vesting 
of  the  title  thereto  is  not  contingent,  it  is  a  use  in  esse,  and 
will  be  executed  at  once  by  the  statute.  If  the  use  is  one 
in  possession  it  will  be  executed  immediately,  both  in  title 
and  in  possession.  If  it  is  to  commence  in  the  future  it  is 
called,  according  to  the  terms  of.the  limitation,  a  contin- 
gent, springing,  or  shifting  use,  and  will  be  considered  in  a 
subsequent  section.4  Nor  is  it  important  in  what  manner 
the  use  is  created,  whether  by  express  limitation  or  by  law, 

i  1  Cruise  Dig.  357 ;  Tud.  Ld.  Cas.  258 ;  Sammes'  Case,  13  Rep.  56 ;  Sand, 
on  Uses,  94,  96. 

2  Doe  v.  Passingham,  6B.&C.  305,  317  ;  Williams  on  Real  Prop.  161 ;  Tud. 
Ld.  Cas.  268 ;  Doe  v.  Martin,  4  T.  R.  89 ;  2  Smith  Ld.  Cas.  454 ;  Whetstone 
v.  Bury,  2  P.  Wms,  146 ;  1  Sugden  on  Pow.  168,  169 ;  Moore  v.  Shultz,  13  Pa. 
St.  98 ;  Hayes  v.  Tabor,  41  N.  H.  521,  526 ;  Atty.-Gen.  v.  Scott,  Cas.  temp. 
Talb.  138 ;  Price  v.  Sisson,  2  Beas.  168,  173,  174 ;  2  Bla.  Com.  336 ;  Franciscus 
v.  Reigart,  4  Watts,  118.     Contra,  Hurst  v.  McNiel,  1  Wash.  C.  Ct  70. 

3  See  ante,  sect.  463,  note ;  and  post,  sect.  470,  note. 
*  See  post,  sects.  478,  485. 

368 


CH.  XIII.]       USES    UNDER  THE   STATUTE   OF  USES.  §    466 

as  in  the  case  of  a  resulting  use,  however  the  use  arises,  if 
it  is  in  esse,  i.e.  vested,  the  statute  will  execute  it.1  If  the 
use  is  contingent,  the  use  is  not  in  esse  until  the  happening 
of  the  contingency  upon  which  its  vesting  depends,  when  it 
will  be  executed  in  the  same  manner  as  if  it  had  been  vested 
from  the  time  of  its  creation.9 

§  466.  Cestui  que  use  in  esse. — There  must,  further- 
more, be  some  ascertained  person  in  esse  who  is  to  take  and 
who  can  take  the  use  under  the  conveyance.  As  a  general 
proposition,  subject  to  an  exception  to  be  mentioned  else- 
where,3 the  character  of  the  cestui  que  use  will  not  affect  the 
execution  of  the  use.  Any  person  in  esse  will  fulfil  the  re- 
quirements of  the  statute.4  But  if  the  cestui  que  use  is  not 
in  esse,  or  not  ascertained,  the  use  is  future  and  contingent, 
and  the  operation  of  the  statute  is  suspended  until  the  cestui 
que  use  is  known.5  If  a  future  use  is  to  vest  upon  the  hap- 
pening of  some  contingency  independent  of  human  action, 
it  is  called  a  contingent,  springing,  or  shifting  use.  But  if 
the  uncertainty  or  contingent  character  is  to  be  settled  by 
the  act  of  some  person  or  persons  designated  by  the  grantor 
or  testator,  then  the  limitation,  although  in  fact  nothing 
more  than  a  contingent  future  use,  receives  the  name  of  a 
power.6 

1  1  Cruise  Dig.  358  ;  Hopkins  v.  Hopkins,  1  Atk.  591 ;  Chudleigh's  Case,  1 
Rep.  126 ;  Osman  v.  Sheafe,  3  Lev.  370 ;  Doe  v.  Salkeld,  Willes,  674 ;  2  Smith's 
Ld.  Cas.  288,  297 ;  Hays  v.  Kershaw,  1  Sandf.  Ch.  258 ;  Tud.  Ld.  Caa.  262. 

a  Chudleigh's  Case,  1  Rep.  126 ;  Tud.  Ld.  Cas.  262 ;  Shep.  Touch.  Prest. 
ed.  529  n;  Sand,  on  Uses,  110;  1  Sugden  Pow.  41.    See  post.,  sects.  479,  481. 

3  See  post,  sect.  469. 

*  1  Cruise  Dig.  354;  2  Washb.  on  Real  Prop.  410. 

5  1  Cruise  Dig.  354;  2  Bla.  Com.  336 ;  Chudleigh's  Case,  1  Rep.  126;  Jack- 
son v.  Myers,  3  Johns.  888;  Reformed  Dutch  Church  v.  Veeder,  4  Wend,  494; 
Ashhurst  v.  Given,  6  Watts  &  L.  323 ;  Miller  v.  Chittenden,  2  Iowa,  371; 
Shapleigh  v.  Pilsbury,  1  Me.  271 ;  Sewall  v.  Cargill,  15 Me.  414.  Seepost,  sect. 
479. 

6  2  Washb.  on  Real  Prop.  420;  Shep.  Touch.  Prest.  ed.  529  n. 

24  369 


§    468  USES  UNDER  THE   STATUTE   OF  USES.       [PART  II. 

§  467.  Words  of  creation  and  limitation. — No  special 
form  of  expression  or  set  of  words  is  necessary  in  the  crea- 
tion of  uses,  provided  such  words  are  used,  as  clearly  show 
the  intention  of  the  grantor  that  a  use  was  to  be  declared  in 
favor  of  another.  The  Statute  of  Uses  employs  the  words 
"use,  confidence,  or  trust,"  and  it  would  accordingly  be 
safer  to  adopt  one  of  these  words,  although  it  is  not  neces- 
sary.1 Although  the  employment  of  technical  words  of 
limitations  was  not  necessary  in  the  creation  of  a  use  before 
the  statute,2  and  since  the  statute  they  are  not  always  nec- 
essary in  the  limitation  of  equitable  estates  which  are  not 
executed  by  the  statute,  and  which  properly  fall  under  the 
head  of  trusts,3  yet  if  the  statute  does  operate  the  use  will 
be  valid  for  the  purpose  of  execution,  only  so  far  as  the 
words  of  limitation  are  capable  of  limiting  similar  estates  at 
common  law.  The  word  "  heirs  "  is  therefore  necessary  to 
a  use  in  fee,  where  the  common  law  in  respect  to  words  of 
limitations  has  not  been  changed  by  statute,  and  its  absence 
cannot  be  supplied  by  words  of  similar  import.  A  convey- 
ance, therefore,  to  the  use  of  A.  and  the  issue  of  his  body 
would  be  neither  an  estate  tail  nor  a  fee  simple,  and  A. 
would  take  only  a  life  estate.4 

§  468.  Active  and  passive  uses  and  trusts.  —  Both  be- 
fore and  after  the  passage  of  the  statute,  uses  and  trusts 

1  2  Washb.  on  Real  Prop.  411 ;  Tud.  Ld.  Cas.  258. 

2  1  Spence  Eq.  Jur.  452 ;  1  Cruise  Dig.  343 ;  Tud.  Ld.  Cas.  253 ;  2  Washb. 
on  Real  Prop.  395. 

3  Villiers  v.  Villiers,  2  Atk.  71 ;  Fisher  v.  Fields.  10  Johns.  505 ;  Newhall 
o.  Wheeler,  7  Mass.  189 ;  Cleveland  v.  Hallett,  6  Cush.  406 ;  Shaw  v.  Weigh, 
2  Stra.  803 ;  Gibson  v.  Montford,  1  Ves.  sr.  485 ;  Oates  v.  Cooke,  3  Burr, 
1684 ;  Att'y-Gen.  v.  Props.  3  Gray,  48.    See  post,  sect.  504. 

*  Tud.  Ld.  Cas.  261 ;  1  Cruise  Dig.  354 ;  Sand,  on  Uses,  122 ;  2  Washb. 
on  Real  Prop.  380.  In  most  of  the  States  the  common  law  in  respect  to  the 
employment  of  technical  words  of  limitation  hai  been  abolished  by  statute. 
The  above  rule,  therefore,  possesses  very  little  practical  importance.  See 
ante,  sect.  37. 

370 


CH.  XIII.]       USES   UNDER   THE    STATUTE    OF   USES.  §    469 

have  been  divided  into  active  and  passive.  Where  the  feoffee 
to  use  was  required  to  perform  some  duty  in  respect  to  the 
estate,  the  use  was  an  active  one.  Where  the  feoffee  had 
nothing  to  do  but  to  hold  the  legal  title  and  seisin  for  the 
support  of  the  use,  it  was  called  passive.  Now,  since  the 
feoffee  can  perform  these  duties  only  as  long  as  he  retains 
the  legal  estate,  the  statute  could  not  execute  an  active  use 
or  trust  without  defeating  the  express  purpose  and  intention 
of  the  grantor.  The  courts,  therefore,  held  that  it  was  not 
the  will  of  the  Legislature  to  execute  active  uses.1  And 
under  the  strict  construction  of  the  statute  the  slightest, 
most  unimportant  duty  in  the  trustee  would  prevent  the 
operation  of  the  statute.2 

§  469.  Uses  to  married  women.  —  So  also  where  the 
purpose  of  the  trust  is  that  the  cestui  que  use,  a  married 
woman,  should  hold  and  enjoy  the  estate  for  her  own  sepa- 
rate use,  the  statute  will  not  execute  the  use.  For  the  ex- 
ecution of  the  use  would  give  to  the  husband  control  over 

1  2  Washb.  on  Real  Prop.  467.    See  note  under  sect.  470. 

1  Thus,  the  statute  was  held  not  to  execute  the  use,  where  the  trustee  was 
directed  to  sell  or  dispose  of  the  property  —  to  collect  and  pay  over  the  rents 
and  profits  —  to  have  the  active  management  of  the  estate  —  to  permit  the 
cestui  que  use  to  receive  the  net  profits  —  to  apply  the  profits  to  the  main- 
tenance of  the  cestui  que  use  —  to  pay  annuities  out  of  the  rents,  or  to  receive 
the  rents  and  allow  them  to  accumulate.  In  any  such  ease,  the  legal  estate 
being  held  necessary  to  the  performance  of  the  trustee's  duty,  the  statute 
could  not  operate,  and  the  use  remained  an  equitable  estate,  to  be  enforced  by 
the  courts  of  equity.  1  Prest  Est.  185 ;  Co.  Lit.  290  b,  note  249,  sect  6 ;  1 
Cruise  Dig.  385;  Doe  v.  Briggs,  2  Taunt.  109;  Nevil  v.  Saunders,  1  Vern.  415; 
Bass  v.  Scott,  2  Leigh,  356;  Exeter  v.  Odiorne,  1  N.  H.  232;  Posey  v.  Cook,  1 
Hill  (S.  C.)  413;  Norton  v.  Leonard,  12  Pick.  152-158;  Newhall  ».  "Wheeler, 
7  Mass.  189 ;  Morton  v.  Barrett,  22  Me.  257 ;  Schley  v.  Lyon,  6  Ga.  530 ;  Plenty 
v.  West,  6  C.  B.  201 ;  Doe  v.  Homfray,  6  A.  &  E.  206 ;  Pullen  v.  Rianhard,  1 
Whart.  514,  520;  Barnett's  App.,  46  Pa.  St.  398;  Fay  o.  Taft,  12  Cush.  448; 
Smithwick  v.  Jordan,  15  Mass.  113;  Lancaster  v.  Dolan,  1  Rawle,  231;  Jonos 
v.  Say  and  Seal,  1  Eq.  Cas.  Abr.  383 ;  Peter  v.  Beverley,  10  Pet.  532 ;  Elliott 
v.  Fisher,  12  Sim.  505;  Craig  v.  Leslie,  3  Wheat.  563  ;  Gott  v.  Cooke,  7  Paige, 
521 ;  Cooper  v.  Whitney,  3  Hill,  95. 

371 


§    469  USES   UNDER   THE   STATUTE   OF   USES.        [PART   II. 

the  property  and  its  rents  and  profits  during  coverture,  and 
his  common-law  right  of  curtesy  would  attach  because  of 
her  disability  to  hold  a  legal  estate  free  from  his  control.1 
But  it  is  to  be  presumed  that  in  those  States  where  the  dis- 
ability of  married  women  is  removed,  and  they  are  permitted 
to  hold  and  dispose  of  property  as  if  they  were  single,  the 

1  1  Cruise  Dig.  385;  Harton  v.  Harton,  7  T.  K.  653;  Steacy  v.  Rice,  27  Pa. 
St.  75 ;  Bush's  App.,  33  Pa.  St.  85 ;  Nevill  v.  Saunders,  1  Vera.  415 ;  Ware  v. 
Richardson,  3  Md.  504 ;  Williams  v.  Holmes,  4  Rich.  Eq.  495 ;  Lines  v.  Dar- 
den,  6  Fla.  78;  Mugniac  v.  Thompson,  1  Baldw.  63.  And  in  making  a 
conveyance  to  the  separate  use  of  a  married  woman,  her  power  of  alienation 
may,  by  a  special  clause,  be  entirely  taken  away  during  the  continuance  of 
the  marriage,  and  this  restriction  will  revive  upon  any  subsequent  marriage, 
if  the  trust  is  itself  revived  by  such  second  marriage.  Hawkes  v.  Hubback, 
L.  R.  11  Eq.  5 ;  In  re  Gaffee's  Trusts,  1  Macn.  &  G.  541 ;  Tullett  v.  Armstrong, 
4  My.  &  Cr.  377 ;  Waters  v.  Tazewell,  9  Md.  291 ;  Fellows  v.  Tann,  9  Ala.  999; 
Shirley  v.  Shirley,  9  Paige,  363;  Pears  v.  Brooks,  12  Ga.  195;  Baggett  ?•. 
Meux,  1  Phil.  627.    But  see  Dubs  v.  Dubs,  31  Pa.  St.  149;  Miller  v.  Bingham, 

1  Ired.  423.  In  the  absence  of  such  a  restraining  clause,  in  England  and  some 
of  the  States,  a  married  woman  is  to  be  treated,  in  respect  to  her  separate  prop- 
erty, as  a  feme  sole,  and  she  may  dispose  of  the  equitable  estate  as  she  pleases. 
Fettiplace  v.  Gorges,  1  Ves.  46 ;  Rich  v.  Cockrell,  9  Ves.  69 ;  Wagstaflf  v.  Smith, 
9  Ves.  520;  Sturgis  v.  Corp.,  13  Ves.  190;  Major  v.  Lausley,  2  Russ.  &  My. 
357 ;  Essex  v.  Atkins,  14  Ves.  542 ;  Stead  v.  Nelson,  2  Beav.  245 ;  Dyett  v. 
North  American  Coal  Co.,  20  Wend.  570;  7  Paige  Ch.  1 ;  Powell  v.  Murray, 

2  Edw.  Ch.  636;  Gardner  v.  Gardner,  22  Wend.  526;  Yale  v.  Dederer,  18  N. 
Y.  269;  Imlay  v.  Huntington,  20  Conn.  175;  Frary  v.  Booth,  4  Am.  Law  Reg. 
(n.  s.)441,  and  note;  Leaycraftw.  Hedden,  3  Green  Ch.  551;  Wyly  v.  Collins, 
9Ga.  223;  Cooke  v.  Husbands,  11  Md.  492;  Chew's  Adm.  v.  Beall,  13  Mel. 
348;  McCroan  v.  Pope,  17  Ala.  612;  Collins  v.  Larenburg,  19  Ala.  685;  Cole- 
man v.  Woolley,  10  B.  Mon.  320;  Hardy  v.  Van  Harlingen,  7  Ohio  (n.  s.)  208 ; 
Whitesides  v.  Cannon,  23  Mo.  457 ;  Segoud  v.  Garland,  23  Mo.  547 ;  Frazier 
v.  Brownlow,  3  Ired.  Eq.  237  ;  Newlin  v.  Freeman,  4  Id.  312.  In  a  number  of 
the  states,  however,  the  English  rule  has  been  discarded,  and  the  contrary 
doctrine  maintained  that  the  married  woman  has  no  power  over  her  separate 
estate,  except  what  is  expressly  granted  or  reserved  to  her  in  the  deed  of  set- 
tlement. Ewing  v.  Smith,  3  Desau,  417 ;  Reed  v.  Lamar,  1  Strobh.  Eq.  27 ;  Cal- 
houn v.  Calhoun,  2  Strobh.  231 ;  Magwood  v.  Johnson,  1  Hill  Ch  228;  Lan- 
caster v.  Dolan,  1  Rawle,  231 ;  Wallace  v.  Coston,  9  Watts,  137 ;  Thomas 
y.Folwell,  2  Whart.  11 ;  Patterson  v.  Robinson,  1  Casey,  81 ;  Metcalf  v.  Cook, 
2  R.  1.355;  Williamson  v.  Beekham,  8  Leigh,  20;  Morgan  v.  Elam,  9  Yerg. 
375 ;  Marshall  v.  Stephens,  8  Humph.  159 ;  Doty  v.  Mitchell,  9  Smed.  &  M. 
447 ;  Montgomery  v.  Agricultural  Bk.,  10  Smed.  &  M.  567. 

372 


CH.  XIII.]      USES   UNDER   THE   STATUTE   OF   USES.  §    470 

reason  failing,  the  rule  would  also  fail,  and  the  statute 
would  execute  the  use.1 

§  470.  Cases  in  which  the  statute  will  not  operate. — 

To  recapitulate,  the  following  are  the  principal  cases  in 
which  the  statute  will  not  execute  the  use  :  1 .  Uses  in  chattel 
interests.  2.  A  use  upon  a  use.  3.  Contingent  uses, 
whether  the  contingency  depends  upon  the  uncertainty  of 
the  cestui  que  use,  or  the  use  itself.  4.  Active  uses  or  trusts. 
5.  Uses  to  married  women.  Every  other  use  will  be  exe- 
cuted immediately  upon  their  creation,  the  feoffee  to  use 
acting  merely  as  a  conduit  for  the  transfer  of  the  seisin  to 
the  cestui  que  use.  Contingent  uses  are  executed  when  they 
become  vested,  while  the  other  classes  of  uses  above  enu- 
merated remain  throughout  their  entire  duration  unexecuted, 
and  enforced  as  trusts  by  chancery.2 

1  So  it  was  held  in  Sutton  v.  Aiken,  62  Ga.  733 ;  Bratton  v.  Massey,  15  S.  C. 
277 ;  Bayer  v.  Cockerill,  3  Kan.  292. 

2  As  has  been  remarked  in  a  preceding  note,  the  English  Statute  of  Uses  has 
been  superseded  in  some  of  the  States  by  modern  statutes,  materially  different 
in  their  operation  from  the  old  statute.  New  York  first  set  the  example  in  1848. 
The  statute  of  New  York  abolishes  all  express  trusts  heretofore  known,  and 
enumerates  the  classes  of  active  trusts  which  can  be  created.  All  other  trusts, 
and  particularly  passive  trusts,  are  declared  to  be  leg;il  estates,  and  the  seisin 
vests  in  the  cestui  que  use  or  trust  by  force  of  the  statute.  1  Rev.  Stat.  N.  Y. 
p.  727,  sects.  45,  46,  47,  48,  49,50.  In  New  York,  therefore,  all  uses  are  con- 
verted into  legal  estates,  except  the  express  trusts  enumerated  in  the  statute, 
and  trusts  arising  by  implication  of  law.  1  R.  S.  N.  Y.  728,  sects.  51,  52,  53, 
55;  Leggett  v.  Perkins,  2  N.  Y.  297;  Downing  v.  Marshall,  23  N.  Y.  377; 
Ring  v.  McCown,  10  N.  Y.  268;  Garfield  v.  Hatmaker,  15  N.  Y.  475;  Louns- 
bury  v.  Pardy,  18  N.  Y.  515 ;  Levy  v.  Brush,  45  N.  Y.  595 :  Marvin  v.  Smith, 
46  N.  Y.  571.  The  future  contingent  uses  become,  by  operation  of  the  stat- 
ute, future  contingent  estates  of  a  legal  character,  and  the  common  law  was 
so  changed  as  to  admit  of  the  limitation  of  legal  estates,  which  were  before 
only  possible  as  the  limitation  of  a  use.  1  R.  S.  N.  Y.  724,  sects.  16,  17,  18,  19. 
This  legislation  has,  in  substance,  been  followed  in  California,  Michigan,  Min- 
nesota, and  Wisconsin.  Cal.  Civ.  Code,  sects.  817,  857,  863,  867,  869,  879;  2 
Comp.  Laws,  Mich.  (1871),  1331;  Gen.  Stat.  Minn.  (1878),  p.  553,  sect.  11;  2 
Rev.  Stat.  Wis.,  p.  1129,  sect.  11.  In  these  States,  therefore,  the  foregoing 
presentation  of  uses  under  the  Statute  of  Uses,  as  well  as  the  subsequent  sec- 
tion on  future  and  contingent  uses,  must  be  taken  with  the  qualifications  arising 
under  the  local  statutes  prevailing  there. 

373 


section  in. 

CONTINGENT,  SPRINGING,  AND  SHIFTING  USES 

Section  478.  Future  uses. 

479.  Contingent  future  uses  —  How  supported. 

480.  Importance  of  the  question. 

481.  The  solution  of  the  question 

482.  Contingent  uses. 

483.  Springing  uses. 

484.  Shifting  uses. 

485.  Future  uses  in  chattel  interests. 

486.  Shifting  and  springing  uses  —  How  defeated. 

487.  Incidents  of  springing  and  shifting  uses. 

§  478.  Future  uses. — It  has  been  explained  that  a  use 
could  be  limited  to  commence  infuturo  with  or  without  a 
preceding  estate  in  the  use  to  support  it,  and  even  in  dero- 
gation of  the  preceding  estate,  and  that  it  may  be  either 
vested  or  contingent.1  If  it  is  a  vested  use  the  statute  will 
operate  immediately  and  convert  it  into  a  legal  estate,  having 
the  characteristics  of  a  vested  estate  in  reversion.  But  if 
the  use  is  contingent  the  operation  of  the  statute  is  sus- 
pended until  the  use  vests  or  comes  in  esse.  These  future 
uses  are  divided  into  contingent,  springing,  and  shifting 
uses,  and  will  here  be  explained  in  the  order  named. 

§479.   Contingent  future  uses  —  How  supported. — In 

a  conveyance,  where  there  is  a  contingent  use  of  limited 
duration,  and  consequently  there  are  other  vested  uses,  the 
latter  are  executed  eo  instanti,  whether  they  are  created  by 
express  limitation  or  arise  by  operation  of  law  under  the 
doctrine  of  resulting  uses ;  while  the  contingent  use  remains 
unexecuted  until  the  contingency  happens.     But  in  order 

1  See  ante,  sect.  449. 

374 


CH.  XIII.]  SPRINGING   AND    SHIFTING   USES.  §    481 

that  the  statute  may  operate,  there  must  be  a  seisin  some- 
where to  feed  the  contingent  uses  as  they  arise.  Great  dif- 
ficulty is  experienced  in  discovering  where  that  seisin  is  to 
be  found,  and  in  determining  its  character.  For  example, 
if  an  estate  is  limited  to  the  use  of  A.  for  life,  to  the  use  of 
B.'s  unborn  son,  to  the  use  of  C.  in  fee.  The  uses  in  A. 
and  C.  being  vested,  are  immediately  executed  by  the  stat- 
ute, while  the  use  to  the  unborn  son  of  B.,  being  contingent, 
remains  unaffected.  A.,  under  the  statute,  acquires  a  legal 
estate  for  life,  and  C.  a  vested  remainder  in  fee.  The  stat- 
ute, therefore,  transfers  to  A.  the  seisin  for  life  and  to  C. 
the  seisin  in  fee  in  remainder.  What  is  the  nature  of  the 
seisin  left  to  support  the  contingent  use  in  B.'s  unborn  son, 
and  where  is  it  to  be  found  when  the  use  vests  ? 

§  480.  Importance  of  the  question.  — The  apparent  ne- 
cessity of  locating  this  seisin  and  of  determining  its  character 
arose  from  the  consideration  of  two  questions,  viz.:  1. 
After  the  legal  estate  had  been  vested  in  A.  for  life  and  in 
C  in  remainder,  was  not  the  entire  seisin  exhausted  and 
drawn  out  of  the  feoffees  or  releasees  to  uses?  2.  If  any 
seisin  did  remain  in  the  feoffees,  could  it  not  be  destroyed 
and  the  contingent  use  defeated  by  a  feoffment  of  the  feof- 
fees? 

§  481.  The  solution  of  the  question.  —  A  great  deal  of 
speculative  discussion  was  indulged  in  by  the  earlier  judges 
and  writers,  and  a  variety  of  opinions  was  the  result.  Some 
held  that  the  entire  seisin  vested  in  the  executed  uses,  sub- 
ject to  the  future  vesting  of  the  contingent  use;  others 
maintained  that  sufficient  seisin  remained  "  in  nubibus,  in 
mare,  in  terra,  in  custodia  legis,"  ready  to  become  united 
with  the  contingent  use  when  the  contingency  happens; 
while,  perhaps,  the  largest  number  sustained  the  view  that 
a  portion  of  the  seisin,  which  they  called  a  scintilla  juris  (a 
right  to  recover  the  seisin),  remained  in  the  feoffees  to  feed 

375 


§    482  SPRINGING   AND   SHIFTING   USES.  [PART   II. 

the  uses  as  they  came  into  being.  But,  under  this  view  of 
the  case,  it  was  necessary  for  the  feoffees  to  enter  in  order 
to  revive  the  seisin  for  the  contingent  use,  and  any  feoff- 
ment by  them  would  result  in  the  destruction  of  the  scintilla 
juris,  and  along  with  it  the  use  depending  upon  it.  But 
the  modern  writers  upon  uses  have  discarded  all  this  ab- 
struse and  subtle  reasoning,  and  support  the  more  rational 
doctrine  advocated  by  Mr.  Sugdenthat  "  upon  a  conveyance 
to  uses  *  *  *  *  immediately  after  the  first  estate  is  exe- 
cuted, the  releasees  to  uses  are  divested  of  the  whole  estate, 
the  estates  limited  previously  to  the  contingent  ases  take 
effect,  the  contingent  uses  take  effect  as  they  arise,  by  force 
of  and  relation  to  the  seisin  of  the  releasees  under  the  deed, 
and  vested  remainders  over  take  effect  according  to  the 
deed,  subject  to  open  and  let  in  the  contingent  uses."1  The 
seisin  receives,  by  force  of  the  statute,  the  power  or  capac- 
ity of  feeding  all  the  uses  as  they  arise,  and  of  being  trans- 
mitted from  one  to  another  as  they  vest  in  possession.2  The 
maintenance  of  this  view  does  away  with  the  scintilla  juris, 
and  removes  the  necessity  of  a  re-entry  by  the  feoffee  to 
regain  the  seisin  for  the  support  of  the  contingent  use,  even 
where  there  has  been  a  disseisin  of  all  the  parties  to  the 
deed.3 

§  482.  Contingent  uses.  —  In  the  foregoing  pages,  the 
term  contingent  use  has  been  used  to  signify  any  future  or 
executory  use  whose  vesting  in  title  depends  upon  a  contin- 
gency. But  the  term  has  been  given  a  more  restricted  sig- 
nification, meaning  contingent  uses  which  would  be  good 

1  3  Prest.  Conv.  400 ;  1  Sugden  on  Pow.  20-48 ;  4  Kent's  Com.  238-247 : 
Fearne  Cont.  Kem.  205;  2  Washb.  on  Real  Prop.  611;  Chudleigh's  Case,  1 
Rep.  120;  Brent's  Case,  Dyer,  340;  Tud.  Ld.  Cas.  260;  Sand,  on  Uses.  110. 

2  2  Washb.  on  Real  Prop.  420. 

3  1  Sugden  on  Pow.  17-48 ;  Fearne  Cont.  Rem.  293,  295,  and  Butler's  note ; 
1  Cruise  Dig.  282 ;  4  Kent's  Com.  238-246 ;  2  Washb.  on  Peal  Prop.  611,  612. 

376 


CH.  XIII.]  SPRINGING  AND    SHIFTING  USES.  §    482 

contingent  remainders  if  they  had  not  been  limited  by  way 
of  uses.1  It  is  a  cardinal  rule  in  the  construction  of  all  fu- 
ture estates,  whether  created  by  deed  or  will,  that  if  they 
can  take  effect  as  remainders  they  will  be  construed  to  be 
such,  even  if  they  are  limited  as  uses.2  A  contingent  use 
is,  therefore,  treated  in  all  essential  particulars  as  a  contin- 
gent remainder,  and  requires  a  particular  estate  of  freehold 
to  support  it.  If  the  use  is  not  vested  during  the  existence 
of  the  particular  estate  in  the  use,  it  fails  in  the  same  man- 
ner as  if  it  had  been  limited  as  a  common-law  contingent  re- 
mainder. And  if,  at  the  time  of  the  conveyance,  the  future 
uses  can  take  effect  as  remainders,  they  cannot  take  effect 
as  future  or  executory  uses  when  a  change  of  circumstances 
has  made  them  void  as  contingent  remainders.3  And  even 
where  the  future  estate  is  void  in  its  inception,  if  it  is  lim- 
ited by  way  of  a  remainder,  as  where  the  vesting  of  the 
future  use  is  made  to  depend  upon  the  duration  of  a  par- 
ticular estate  which  cannot  support  a  contingent  remainder 
because  it  is  less  than  a'  freehold,  the  future  use  will  be 
void  as  a  remainder,  and  cannot  be  construed  as  a  springing 
or  shiftinp;  use.4  But  where  the  future  use  is  not  made  to 
depend  upon  a  preceding  use,  as  where  it  is  to  vest  at  a  time 
subsequent  to  the  natural  termination  of  the  particular  use, 
a  limitation  entirely  repugnant  to  the  law  of  remainders,  it 

*  1  Prest.  Abstr.  105;  4  Kent's  Com.  258;  2  Washb.  on  Real  Prop.  608. 

2  Co.  Lit  217 ;  Fearne  Cont.  Rem.  284 ;  1  Prest.  Abstr.  108 ;  2  Wasbb.  on 
Real  Prop.  609. 

3  Fearne  Cont.  Rem.  284,  and  Butler's  note ;  2  Cruise  Dig.  261 ;  Adams  v. 
Savage,  Salk.  679 ;  s.  c,  2  Ld.  Rayra.  854 ;  G-oodtitle  v.  Billington,  Dougl. 
758 ;  The  State  v.  Trask,  6  Vt.  363 ;  Davies  v.  Speed,  Salk.  675.  But  see 
Dingley  v.  Dingley,  5  Mass.  535 ;  Carroll  v.  Hancock,  3  Jones  L.  471 ;  Nichols 
v.  Denny,  37  Miss.  59. 

*  Adams  v.  Savage,  2  Ld.  Raym.  854;  Williams  on  Real  Prop.  293; 
Southsctt  v.  Stowell,  1  Modern,  238 ;  Cole  v.  Sewell,  4  Dru.  &  Warr.  27 ; 
Tud.  Ld.  Cas.  263 ;  4  Kent's  Com.  293 ;  2  Washb.  on  Real  Prop.  612,  613. 
Mr.  Washburn  cites  Wils.  Uses,  9,  in  opposition  to  the  text.  2  Washb.  on, 
Real  Prop.  621. 

377 


§    484  SPRINGING   AND   SHIFTING  USES.  [PART   II. 

will  be  held  to  be  a  shifting  or  springing  use,  which  will 
vest  independently  of  the  preceding  estate.1 

§  483.  Springing  uses.  — A  springing  use  is  one  to  com- 
mence in  the  future,  unsupported  by  the  limitation  of  a 
preceding  use,  and  which  does  not  by  its  vesting  defeat  or 
cut  short  any  prior  limitation.  Thus,  a  limitation  to  the 
use  of  B.  and  his  heirs  after  the  death  of  A.  Until  the 
death  of  A.  the  use  results  to  the  grantor,  and  at  his  (A.'s) 
death  it  is  executed  in  B.  and  his  heirs.  A  springing  use 
may  be  either  vested  or  contingent,  according  to  the  cer- 
tainty or  uncertainty  of  the  event  upon  which  it  depends. 
The  example  given  above  is  a  vested  springing  use,  as  A.  is 
sure  to  die,  and  the  use  takes  effect  whether  B.  dies  before 
A.  or  survives  him ;  but  a  limitation  to  the  heirs  of  B.  after 
the  death  of  A.  would  be  contingent,  because  of  the  uncer- 
tainty of  B.'s  dying  before  A.2 

§  484.  Shifting  uses. — A  shifting  or  secondary  use  is 
one  which  is  so  limited,  that  its  vesting  will  defeat  the  prior 
estate  in  the  use,  and  is  always  contingent.  The  use  upon 
the  happening  of  the  event  shifts  from  the  first  taker  to  the 
second.  It  has  been  explained  that  at  common  law  no  es- 
tate could  be  limited  after  a  fee  or  in  derogation  of  the  pre- 
ceding. estate.3  But  there  is  no  such  restriction  upon  the 
limitation  of  uses.  The  use  in  fee  may,  upon  the  happening 
of  successive  events,  be  made  to  shift  from  one  person  to 
another  without  limit,  provided  the  doctrine  of  perpetuity 
is  not  thereby  violated.  A  shifting  use  is,  therefore,  one 
class  of  what  are  called  conditional  limitations.     A  condi- 


i  2  Washb.  on  Real  Prop.  621 ;  Gore  v.  Gore,  2  P  Wms.  28. 

*  2  Cruise  Dig.  263;  2  Washb.  on  Real  Prop.  600-613;  4  Kent's  Com. 
298;  Egerton  v.  Brownlow,  4  H.  L.  Cas.  206;  Mutton's  Case,  Dyer,  274; 
Jackson  v.  Dunsbaugh,  1  Johns.  Cas.  96 ;  Shapleigh  v.  Pilsbury,  1  Me.  271 ; 
Wyman  v.  Brown,  50  Me.  156. 

8  See  ante,  gects.  281,  396. 
378 


Xm.  XIII.]  SPRINGING   AND    SHIFTING  USES.  §    486 

tional  limitation  can  only  be  created  under  the  Statute  of 
Uses  or  the  Statute  of  Wills.  Under  the  former  it  is  known 
as  a  shifting  use,  while  under  the  latter  it  is  called  an  execu- 
tory devise.1  When  a  future  limitation  is  a  conditional 
limitation,  as  distinguished  from  a  contingent  remainder, 
has  been  already  discussed,2  and  will  require  no  further 
elucidation. 

§  485.  Future  uses  in  chattel  interests. — At  common 
law  it  is  impossible  to  create  a  remainder  in  a  chattel  in- 
terest. The  lessee  of  a  term  of  years  could  grant  a  part  of 
the  term  to  one  and  the  rest  to  another,  as,  for  example, 
out  of  a  term  of  thirty  years  he  could  assign  it  to  A.  for  ten 
years  and  to  B.  for  twenty  years,  beginning  at  the  close  of 
A.'s  term.  But  he  could  not  give  A.  a  life  estate  and  B.  a 
remainder  in  fee.3  This  is  possible,  however,  by  way  of  a 
future  use.  Where,  therefore,  such  a  limitation  of  a  term 
js  made  by  way  of  a  use  it  will  not  take  effect  as  a  remain- 
der, but  as  a  springing  or  shifting  use,  according  to  the 
terms  of  the  limitation.4 

§  486.   Shifting  and  springing  uses  —  How  defeated.  — 

At  common  law  the  destruction  of  the  particular  estate  by 

1  Fearne  Cont.  Rem.  385 ;  1  Spence  Eq.  Jur.  452 ;  Egerton  v.  Brownlow,  4 
H.  L.  Cas.  209;  2  Cruise  Dig.  264;  Co.  Lit.  271b,  note  231,  sect.  3; 
Tud.  Ld.  Cas.  363 ;  Winchelsea  v.  Wentworth,  1  Vern.  402 ;  2  Washb.  on 
Real  Prop.  622-624.  An  example  of  a  shifting  use,  would  be,  a  limitation  to 
A.  and  his  heirs,  and  if  B.  should  return  from  Rome,  then  over  to  C.  and  his 
heirs.  The  return  of  B.  from  Rome  would  determine  the  use  in  A.,  and  exe- 
cute the  use  in  C.  Cogan  v.  Cogan,  Cro.  Eliz.  3G0;  Carwardine  v.  Carwar- 
dine,  1  Eden,  34;  Winchelsea  v. Wentworth,  supra;  Doe  v.  Whittingham,  4 
Taunt.  22 ;  Buckworth  v.  Thirkell,  3  B.  &  P.  655 ;  Battey  v.  Hopkins,  6  R.  I 
445. 

-i  See  ante,  sects.  281,  396,  415,  418. 

3  1  Cruise  Dig.  235;  Fearne  Cont.  Rem.  401;  4  Kent's  Com.  270; 
Wright  v.  Cartwright,  1  Burr.  284. 

*  2  Bla.  Com.  174;  Fearne  Cont.  Rem.  401,  Butler's  note;  Lampet's 
Case,  10  Rep.  46;  Wright  v,  Cartwright,  1  Burr.  284;  2  Wa3hb.  on  Real 
Prop.  62<\  625, 

379 


§    486  SPRINGING  AND   SHIFTING  USES.  [PART  II. 

feoffment  or  other  act  of  the  tenant  will  defeat  any  contin- 
gent remainder  depending  upon  it.1  And  such  is  also  the 
rule  in  regard  to  contingent  uses.2  But  no  act  of  the  tenant 
of  a  preceding  estate  will  effect  the  destruction  of  a  spring- 
ing or  shifting  use,  which  are  in  their  nature  independent 
of  any  prior  estate  which  may  be  had  in  the  use.3  It  was 
formerly  supposed  that,  if  the  tenant  of  the  particular  estate 
was  disseised,  in  order  that  the  contingent  use  might  be  ex- 
ecuted, there  must  be  an  actual  entry  by  the  tenant  and  the 
actual  seisin  regained.  But  this  doctrine  has  been  repu- 
diated by  the  best  authorities,  and  it  is  now  held  that  the 
contingent  use  would  vest  in  title,  whether  the  tenant  is 
seised  or  has  been  disseised,  and  that  the  contingent  cestui 
que  use  acquires  the  right  of  entry  by  the  force  of  the  Stat- 
ute of  Uses.4 

1  See  ante,  sect.  419. 

2  Faber  v.  Police,  10  S.  C.  376.     And  see  cases  and  references  cited  in. 
note  3. 

8  2  Cruise  Dig.  281;  4  Kent's  Com.  241;  Tud.  Ld.  Cas.  263;  Archer's 
Case,  1  Rep.  67;  Chudleigh's  Case,  1  Rep.  120-  2  Washb.  on  Real  Prop.  682 
683,  625,  626. 

*  Fearne  Cont.  Rem.  286,  290,  295;  1  Kent's  Com.  242,  247;  1  Sugdenon 
Pow.  17-48 ;  2  Cruise  Dig.  282,  284 ;  Tud.  Ld.  Cas.  260 ;  Chudleigh's  Case,  1  Rep 
120;  Wegg  v.  Villers,  2  Rolle.  Abr.  796.  This  last  case  is  very  celebrated,  on 
account  of  the  fact,  that  the  suit  was  brought  on  the  settlement  by  Lord  Coke 
of  his  property  upon  his  wife  and  daughter.  The  following  is  the  account 
given  of  the  case  by  Mr.  Washburn,  which  is  here  appended,  because  a 
thorough  appreciation  of  the  fine  points  of  the  case  involves  an  accurate 
knowledge  of  the  principles  enunciated  in  the  preceding  pages.  "  The  cir- 
cumstances under  which  it  (the  case  of  Wegg  v.  Villers)  arose  were  these,  as 
stated  by  the  biographer  of  Lord  Coke.  The  relations  of  Lord  Coke  with 
his  wife,  Lady  Hatton,  it  is  well  known,  were  not  of  the  most  pleasant  kind. 
Coke  having  fallen  into  disgrace  with  King  James,  while  acting  as  Lord 
Chief  Justice,  sought  to  regain  the  favor  of  that  weak  and  capricious  monarch, 
and  it  was  through  the  agency  of  Buckingham,  who  was,  at  the  time,  the 
King's  favorite,  that  he  sought  to  operate  upon  the  King.  Buckingham  had 
a  brother,  Sir  John  Villers,  and  Coke  a  daughter,  Frances,  by  Lady  Hatton, 
and  he  proposed  a  match  between  them.  The  mother,  angry  at  not  having 
been  consulted  in  the  matter,  carried  her  daughter  off,  and  secreted  her. 
Coke,  discovering  her  place  of  concealment,  went  with  his  sons  and  seized 
her  by  force.     Lady  Hatton  appealed  to  the  Privy  Oouncil,  and  it  became  aa. 

380 


<CH.  XIII.  J  SPRINGING  AND   SHIFTING  USES.  §    487 

§  487.   Incidents  of  springing  and  shifting  uses. — All 

such  uses  are  capable  of  being  disposed  of  in  equity  by  as- 
signment or  by  will,  and  they  descend  to  the  heirs  of  the 

affair  of  state.  It  was  at  length  adjusted,  upon  Lord  Coke's  paying  £10,000 
sterling,  and  entering  into  articles  of  settlement  upon  the  marriage  of  his 
daughter,  pursuant  to  articles  and  directions  of  the  Lords  of  the  Council. 
The  adroitness  with  which  this  settlement  was  drawn,  and  the  cunning  man- 
ner in  which  he  arranged  its  provisions,  so  as  to  defeat  it  or  let  it  stand  good 
as  he  might  choose,  will  be  perceived  by  recurring  to  its  terms,  and  remem- 
bering and  applying  the  idea  advanced  in  Chudleigh's  Case,  that  the  uses,  so 
far  as  contingent,  must  have  an  actual  seisin  in  some  ©ne,  answering  to  a 
feoffee's,  to  sustain  them.  In  the  first  place,  the  conveyance  was  made  by 
covenant  to  stand  seised  on  his  part,  and  the  limitations  derived  their  force 
and  effect  from  the  seisin  in  himself,  for  he  covenanted  to  stand  seised  to  the 
use  of  himself  for  life,  remainder  to  the  use  of  his  wife  for  life,  remainder  to 
the  use  of  his  daughter  for  life,  remainder  to  her  first  and  other  sons  in  tail, 
reversion  to  his  own  right  heirs.  This  gave  an  estate  to  him  for  life  in  pos- 
session, a  vested  estate  for  life  in  remainder  to  his  wife,  and  the  same  to  his 
daughter  for  life  in  remainder,  with  contingent  uses  by  way  of  remainder  to 
unborn  sons  in  tail,  reserving  to  himself,  after  and  above  all  these  limitations, 
a  reversion  in  fee.  Lord  Coke  then  made  a  deed  of  grant  of  this  reversion  to 
a  third  person  without  consideration,  and  in  his  deed  recited  the  foregoing 
settlement.  He  then  made  a  feoffment  in  fee  of  the  lands  thus  settled,  with 
livery  of  seising.  As  all  the  estates  but  the  reversion  were  by  way  of  use,  it 
was  the  seisin  that  was  in  him  as  covenanter  and  reversioner  which  was  to 
support  them,  and  if  this  was  destroyed,  so  far  as  these  were  contingent,  they 
would  be  defeated.  But  as  his  grant  of  this  reversion  was  to  one  having 
notice,  it  remained  subject  to  the  settlement,  and  the  seisin  of  this  grantee 
was  that  out  of  which  these  uses  were  to  arise  in  the  same  way  as  from  the 
seisin  which  Lord  Coke  had  had  before  the  grant.  But  as  he  was  also  in  pos- 
session for  life,  the  effect  of  his  feoffment  was  not  only  to  destroy  his  own 
seisin  and  estate,  but  to  make  a  discontinuance  of  that  of  bis  grantee  the  re- 
versioner, together  with  the  estates  of  the  wife  and  daughter.  But  it  left  a 
right  of  entry  in  the  daughter.  But  as  this  discontinuance  was  a  forfeiture  of 
the  father's  life  estate,  and  that  of  his  wife  during  coverture,  it  gave  a  right  of 
entry  in  the  daughter  as  holder  of  the  next  vested  estate,  and  a  contingent 
right  of  entry  to  the  wife,  dependent  on  her  surviving  her  husband.  The 
former  was  sufficient  to  support  the  contingent  use  to  the  daughter's  first  son, 
provided  there  should  be  a  seisin  to  serve  such  use,  when  it  should  arise.  As 
it  turned  out,  Lord  Coke's  wife  survived  him,  and  having,  by  the  right  of 
entry  which  she  thereby  acquired,  entered  upon  the  estate,  reinstated  the 
divested  estates,  including  that  of  the  grantee  of  the  reversion,  out  of  whose 
seisin  the  contingent  uses  were  to  arise,  and  the  limitations  took  effect  in  their 
order.  If,  however,  Lord  Coke  had  made  his  feoffment  before  making 
the  grant  of  the  reversion,  the  effect  would  have  been  to  have  worked  a  dis- 

381 


§    487  SPRINGING   AND    SHIFTING  USES.  [PART   II. 

cestui  que  use,  and  this,  too,  when  the  use  is  contingent, 
provided  the  contingency  does  not  depend  upon  the  uncer- 
tainty of  the  cestui  que  use.  But  they  cannot  be  aliened  by 
deed.1  Where  a  springing  use  is  vested,  since  the  statute 
executes  it  eo  instanti,  it  becomes  a  future  legal  estate  with  all 
the  ordinary  rights  attaching  thereto.  Such  a  use  can  be 
disposed  of  in  any  manner  of  which  a  legal  vested  estate  is 
capable.  For  the  protection  of  the  interests  of  these  cestuis 
que  use  against  any  acts  of  waste  of  the  prior  tenant,  the 
rules  of  the  common  law  in  respect  thereto  apply  by  anal- 
ogy, and  chancery,  upon  the  application  of  the  cestui  que 
use,  would  restrain  the  commission  of  waste  just  as  if  his 
estate  had  been  a  contingent  remainder.2  Springing  and 
shifting  uses  are,  in  their  characteristics,  essentially  the 
same  as  executory  devises,  differing  only  in  the  manner  of 
their  creation;  it  would  be  a  mere  repetition,  therefore,  to 
discuss  their  incidents  separately,  beyond  what  has  been 
said.  This  subject  will  be  resumed  under  the  head  of  ex- 
ecutory devises.3 

seisin  and  divested  all  of  the  then  subsisting  estates,  including  the  estate  or 
seisin  out  of  which  the  contingent  uses  were  to  arise,  and  which  was  to  serve 
them.  For  as  there  was  no  privity  between  his  feoffee,  his  wife  or  daughter 
and  his  heirs,  whose  seisin  alone  could  support  their  contingent  uses,  no  entry 
by  the  wife  or  daughter  could  restore  the  estate  and  seisin  of  Lord  Coke  or 
his  heirs,  contrary  to  his  own  feoffment,  since  he  himself  could  not  have  en- 
tered against  such  a  feoffment.  Now  the  cunning  part  of  the  arrangement; 
which  was  defeated  by  his  dying  while  things  were  in  the  above  state,  was 
this.  If  he  had  seen  fit  to  sustain  the  remainders,  he  would  have  snppressed 
the  feoffment,  and  only  have  shown  the  grant  of  the  reversion,  to  counteract 
the  feoffment,  if  that  should  be  set  up  by  any  one.  "Whereas  if  he  had  wished 
at  any  time  to  destroy  the  remainders,  he  would  have  suppressed  the  grant  of 
the  reversion,  and  left  the  feoffment  to  have  its  effect.  As  he  left  both  these 
in  force,  it  gave  rise  to  the  action  above  named,  and  an  indefinite  amount  of 
refinement  and  ingenious  discrimination  upon  a  rule  law  too  subtle  to  be  ap- 
prehended by  ordinary  minds."     2  Washb.  on  Real  Prop.  629-631. 

1  Fearne  Cont.  Rem.  366,  and  Butler's  note;    Jones  v.  Roe,  3  T.  R.  88; 
Hobson  v.  Trevor,  2  P.  Wms.  191  ;  2  Washb.  on  Real  Prop.  626. 

2  Fearne  Cont.  Rem.  302,  and  Butler's  note ;  Stansfield  r.  Habergram,  10 
Ves.  275 ;  2  Washb.  on  Real  Prop.  626. 

3  See  post,  ch.  XIV  ,  sects.  540-643,  545-547. 

382 


SECTION  rv. 

TRUSTS. 

Section  493.  What  are  trusts. 

494.  Active  and  passive  trusts. 
595.  Executed  and  executory  trusts. 

496.  Express  trusts. 

497.  Implied,  resulting,  and  constructive  trusts. 

498.  Implied  trusts. 

499.  Kesulting  trusts. 

500.  Same  —  Payment  of  consideration. 

501.  Constructive  trusts. 

502.  Interest  of  the  cestui  que  trust. 

503.  Liability  for  debts. 

504.  Words  of  limitations. 

505.  Doctrine  of  remainders  applied  to  trusts. 

506.  How  created  and  assigned. 

507.  Statute  of  Frauds. 

508.  How  affected  by  want  of  a  trustee. 

509.  Kemoval  of  trustees. 

510.  Refusal  of  trustee  to  serve. 

511.  Survivorship. 

512.  Merger  of  interest. 

513.  Rights  and  powers  of  trustees. 

514.  Rights  and  powers  of  cestuis  que  trust. 

515.  Alienation  of  trust  estate. 

516.  Liability  of  third  persons  for  performance  of  the  trust. 

517.  Compensation  of  trustee. 

§  493.  Wliat  are  trusts  ?  —  The  Statute  of  Uses  makes 
use  of  the  words  "  use,  confidence,  and  trust,"  and  recog- 
nizes no  distinction  between  them,  and  before  the  statute 
there  was,  as  has  been  shown,1  no  material  difference  be- 
tween them,  and  such  would  have  been  the  case  in  modern 
times  if  the  statute  had  prevented  the  continued  existence 
of  equitable  estates,  in  conformity  with  the  design  and  in- 
tention of  the  legislators.     But  the  statute  was  construed 

1  See  ante,  sect.  441. 

383 


§    494  TRUSTS.  [part  II. 

to  have  no  effect  upon  certain  equitable  interests,1  which 
remained  equitable  and  distinct  from  the  legal  estate  after 
as  well  as  before  the  statute.  For  the  sake  of  convenience, 
and  the  purpose  of  distinguishing  them  from  those  uses  and 
trusts  which  were  executed  by  the  statute,  the  term  trust 
has  since  been  exclusively  applied  to  those  equitable  inter- 
ests, which  remain  such,  while  the  term  use  represents  all 
such  interests  as  are  converted  into  legal  estates,  either  eo 
instanti  or  subsequently,  as  in  the  case  of  contingent  uses.2 

§  494.  Active  and  passive  trusts.  —  "Where  a  special  duty 
is  to  be  performed  by  the  trustee  in  respect  to  the  estate, 
such  as  to  collect  the  rents  and  profits,  to  sell  the  estate, 
etc.,3  the  trust  is  called  active.  It  is  the  duty  which  pre- 
vents the  operation  of  the  statute,  for  the  trustee  must  have 
the  legal  estate  in  order  to  perform  his  duties.4  All  other 
trusts  are  denominated  passive  trusts,  because  there  is  no 
duty  imposed  upon  the  trustee.  He  simply  acts  as  a  reser- 
voir of  the  legal  estate,  because  from  the  terms  and  charac- 
ter of  the  conveyance  and  limitation  the  statute  cannot 
transfer  the  legal  estate  to  the  cestui  que  use  or  trust .  Such 
would  be  a  use  upon  a  use,  a  use  in  chattel  interests,  and 

1  See  ante,  sect.  470. 

2  1  Spence  Eq.  Jur.  491,  493,  494;  1  Prest.  Est.  186-190;  Tud.  Ld  Cas. 
268-276;  2  Bla.  Com.  336;  Doe  v.  Hamfrey,  6  A.  &  E.  206;  Doe  v.  Biggs,  2 
Taunt.  169;  Doe  v.  Collier,  11  East,  377;  4  Kent's  Com.  314;  Ayer  v.  Ayer, 
16  Pick.  327-330 ;  Fisher  v.  Fields,  10  Johns.  505 ;  Jones  v.  Bush,  4  Harr.  1 ; 
Horton  v.  Horton,  7  T.  R.  653 ;  2  Pom.  Eq.  Jur.,  sects.  984-986. 

3  1  Cruise  Dig.  384;  Co.  Lit.  290  b,  249,  sect.  6;  Tud.  Ld.  Cas.  270;  1 
Prest.  Abst.  143;  Sherman  v.  Dodge,  28  Yt.  26;  Aiken  v.  Smith,  1  Sneed, 
304;  Welles  v.  Castles,  3  Gray,  323;  Ackland  v.  Lutley,  9  A.  &  E.  879;  Rob- 
inson v.  Grey,  6  East,  1 ;  Hovell  v.  Barnes,  Cro.  Car.  382 ;  Douglass  v.  Cruger, 
80  N.  Y.  15;  Smith  v.  Harrington,  4  Allen,  566;  Leonard  v.  Diamond,  31  Md. 
563 ;  Blake  v.  Anscombe,  1  B.  &  P.,  n.  R.,  25 ;  Doe  v.  Field,  2  B.  &  Ad.  564 ; 
Culbertson's  App.,  76  Pa.  St.  145;  Brooks  v.  Marbury,  11  Wheat.  78;  Gott  u. 
Cooke,  7  Paige,  521 ;  Doe  v.  Barthrop,  5  Taunt.  382 ;  Doe  v.  Ewart,  7  A.  & 
E.  636;  Upham  v.  Yarney,  15  N.  H.  462;  William's  Appeals,  83  Pa.  St.  377. 

4  See  authorities  cited  in  preceding  note. 

384 


CH.  XIII.]  TRUSTS.  §    495 

uses  to  persons  incapable  of  holding  the  legal  estate  —  for 
example,  married  women.1 

§  495.  Executed  and  executory  trusts.  —  Where  the  lim- 
itations are  all  definitely  settled  by  the  deed  of  creation, 
and  there  is  nothing  further  to  be  done  in  order  to  deter- 
mine  the  exact  interest  of  the  cestui  que  use  and  the  dura- 
tion of  the  trust,  the  trust  is  said  to  be  executed.  But 
where  the  terms  of  the  trust-deed  simply  define  how  the 
settlement  shall  be  made,  and  imposes  that  duty  upon  the 
trustee,  the  trust  is  called  executory.  All  passive  trusts 
and  such  active  trusts,  in  which  the  duty  of  the  trustee  is 
confined  to  the  ordinary  administration  of  the  property,  are 
executed  trusts,  while  active  trusts,  in  which  it  is  the  duty 
of  the  trustee  to  convey  to  the  person  named,  or  to  deter- 
mine the  shares  which  several  shall  take,  and  the  like,  are 
comprehended  under  the  head  of  executory  trusts.  Execu- 
tory trusts  bear  a  close  resemblance  to  powers  when  granted 
to  trustees,  to  which  more  particular  reference  will  be  made 
in  the  treatment  of  that  subject.2 

1  Doe  v.  Pas3ingham,  6  R  &.  C.  305;  Doe  v.  Collier,  11  East,  377;  Price 
v.  Sisson,  13  N.  J.  173;  Hayes  v.  Tabor,  41  N.  H.'  521 ;  Kuhn  v.  Newman,  26 
Pa.  St.  227 ;  Steacy  v.  Rice,  27  Pa.  St.  75 ;  Lines  v.  Darden,  5  Fla.  78 ;  Hor- 
ton  v.  Horton,  7  T.  R.  653;  Williman  v.  Holmes,  4  Rich.  Eq.  495;  Ware  v. 
Richardson,  3  Md.  505;  Moore  v.  Shultz,  13  Pa.  St.  98;  Welch  v.  Allen,  21 
Wend.  147 ;  Ramsay  v.  Marsh,  2  McCord,  252 ;  Webster  v.  Cooper,  14  How. 
488;  1  Prest.  Abst.  140;  Wagstaff  v.  Smith,  9  Ves.  520;  Boyd  v.  England,  56 
Ga.  598 ;  Sutton  v.  Aiken,  62  Ga.  733 ;  Bolles  v.  State  Trust  Co.,  27  N.  J.  308 ; 
Rogers  Loc.  Works  v.  Kelly,  19  Hun,  399 ;  Weber  v.  Weber,  58  How.  Pr. 
255;  Martin  v.  Funk,  75  N.  Y.  134;  Boone  v.  Bank,  84  N.  Y.  83;  Badgett  v. 
Keating,  31  Ark.  400. 

2  It  will  be  observed  that  the  terms  executed  and  executory,  when  applied 
to  modern  trusts,  have  a  different  significance  from  that  which  is  given  to 
them,  in  referring  to  the  operation  of  the  Statute  of  Uses  upon  uses.  Fearne 
Cont.Rem.  55,  113,  139;  4  Kent's  Com.  304,  305.  Mr.  Lewin  defines  these 
classes  of  trusts  thus:  "Trusts  executed  are  where  the  limitations  of  the 
equitable  interest  arc  complete  and  final ;  in  the  trust  executory,  the  limita- 
tions of  tho  equitable  interest  are  not  intended  to  be  complete  or  final,  but 
merely  to  serve  as  minutes  and  instructions  for  perfecting  the  settlement  at 

25  385 


§    497  TRUSTS.  [part   II. 

§  496.  Express  trusts. — All  the  trusts,  which  have  been 
heretofore  discussed,  receive  the  further  appellation  of  ex- 
press trusts,  because  they  are  expressly  created  by  some 
deed  or  other  instrument  of  conveyance,  and  are  to  be  dis- 
tinguished from  those  trusts,  which  are  explained  in  the 
succeeding  paragraphs,  and  which  arise  by  operation  of  law 
for  the  prevention  of  injury  and  the  furtherance  of  justice. 
Express  trusts  are  created  by  the  express  act  of  the  party 
owning  the  property.  And  it  may  be  stated  here  that  the 
law  will  never  imply  a  trust  where  one  has  been  created  ex- 
pressly, even  though  the  express  trust  is  void  for  the  want 
of  some  essential  formality,  unless  the  consideration  is  paid 
by  the  cestui  que  trust  under  such  circumstances  as  to  give 
rise  to  a  resulting  trust.1 

§  497.  Implied,  resulting,  and  constructive    trusts. — 

Trusts  which  arise  by  implication  of  law  are  subdivided  by 
the  books  into  implied,  resulting,  and  constructive  trusts. 
These  names  are  purely  arbitrary,  and  do  not  convey  to  the 
mind  any  idea  of  the  distinguishing  feature  of  the  trusts 

some  future  period.  Lewin  on  Tr.  45 ;  2  Pom.  Eq.  Jur.,  sects.  1000,  1001  ;  Saun- 
ders v.  Edwards,  2  Jones  Eq.  134;  Evans  v.  King,  3  Id.  387;  Porter  v.  Doby, 
2  Rich.  Eq.  49 ;  Cushing  v.  Blake,  30  N.  J.  689 ;  1  Eq.  Ld.  Cas.  1-36 ;  Neves 
v.  Scott,  9  How.  211 ;  Tillinghast  v.  Coggeshall,  7  R,  I.  393 ;  Egerton  ».  Brown- 
low,  4  H.  L.  Cas.  210;  Leonard  v.  Countess  of  Sussex,  2  Vera.  526;  Wright 
v.  Pearson,  1  Eden,  119;  Austin  v.  Taylor,  1  Eden,  361 ;  Boswell  v.  Dillon, 
Drury,  291  f  Mullany  v.  Mullany,  3  Green  Ch.  16;  Sackville-West  v. 
Holmesdale,  L.  R.  4  H.  L.  Cas.  543 ;  Carroll  v.  Renick,  7  Smed.  &  M.  798 ; 
Bowen  v.  Chase,  94  U.  S.  812 ;  Imlay  v.  Huntington,  20  Conn.  146 ;  Riddle  v. 
Cutter,  49  Iowa,  547 ;  Tallman  v.  Wood,  26  Wend.  9 ;  Berry  v.  Williamson, 
11  B.  Mon.  245;  Horne  v.  Lyeth,  4  Har.  &J.  431;  Dennison  v.  Goehring,  7 
Pa.  St.  175 ;  Wood  v.  Burnham,  6  Paige,  513 ;  Shelley  v.  Shelley,  L.  R.  6 
Eq.  540 ;  Garnsey  v.  Mundy,  24  N.  J.  243 ;  Garner  v.  Garner,  1  Deems,  437. 

1  1  Spence  Eq.  Jur.  496 ;  2  Washb.  on  Real  Prop.  436,  437 ;  2  Pom.  Eq.  Jur., 
sects.  987,  1030;  Dennison  v.  Goehring,  7  Pa.  St.  175;  Farrington  v.  Barr,  36 
N.  H.  86 ;  Gibson  v.  Foote,  40  Miss.  792 ;  Van  der  Volger  v.  Yates,  9  N.  Y. 
219;  Graves  v.  Graves,  29  N.  H.  129;  Thomson  v.  Peake,  7  Rich.  353;  Night- 
ingale v.  Hidden,  7  R.  I.  121 ;  Haggard  v.  Benson,  3  Tenn.  Ch.  268;  Ward  d. 
Armstrong,  84  111.  151. 
386 


CH.  XIII.]  TRUSTS.  §    498 

which  they  respectively  represent.  All  trusts  created  by 
operation  of  law  may  be  said  to  he  implied  or  constructive, 
while  the  use  of  the  word  resulting  serves,  perhaps,  to  con- 
found these  trusts  with  resulting  uses.  But  it  is  convenient 
to  make  use  of  this  subdivision,  and,  for  the  want  of  better 
terms,  these  are  employed  to  denote  the  three  classes. 
Trusts  created  by  operation  of  law  cannot  be  executed  by 
the  Statute  of  Uses.  They  are  not  recognized  by  courts  of 
law.  They  are  the  creations  of  equity,  and  are  applied  by 
the  court  of  equity  to  all  inequitable  transactions  where  the 
ends  of  justice  cannot  be  otherwise  attained.1 

§  498.  Implied  trusts.  —  Whenever  the  owner  of  land 
directs  a  certain  disposition  of  it,  which  is  to  enure  to  the 
benefit  of  a  third  person  without  expressly  creating  a  trust 
in  his  behalf,  under  the  maxim  that  equity  treats  that  as 
done  which  ought  to  be  done,  a  trust  will  be  implied  in  be- 
half of  such  beneficiary.  Thus,  if  the  testator  directs  his 
lands  to  be  sold  for  the  satisfaction  of  his  debts,  an  implied 
trust  is  raised  in  favor  of  the  creditors  which  will  enable 
them  to  compel  a  performance  of  the  trust  by  the  executor. 
This  implied  trust  was  specially  valuable  in  the  days  when 
real  property  was  not  liable  for  the  debts  of  the  owner.2 
Another  well  known  application  of  the  doctrine  is  the  case 
of  equitable  conversion,  so-called.  When  a  contract  for 
the  sale  of  real  property  is  made  for  a  valuable  considera- 
tion, and  it  is  evidenced  by  an  instrument  in  writing,  equity 

1  2  Washb.  on  Real  Prop.  437;  2  Pom.  Eq.  Jur.,  sect.  1030;  1  Spence  Eq. 
Jur.  496 ;  1  Prest.  Est.  191 ;  Nightingale  v.  Hidden,  7  R.  I.  121 ;  Thompson 
v.  Peake,  7  Rich.  353,  and  cases  cited  in  subsequent  notes. 

2  1  Spence  Eq.  Jur.  509;  2  Washb.  on  Real  Prop.  438.  This  species  of 
trust  is,  however,  really  an  express  trust,  although  it  arises  by  construc- 
tion, and  is  not  strictly  created  by  express  limitation.  2  Pom.  Eq.  Jur.,  sect. 
1010.  See  Walker  v.  Whiting,  23  Pick.  313 ;  Fay  v.  Taft,  12  Cush.  448 ;  Baker 
v.  Red,  4  Dana,  158;  Lane  v.  Lane,  8  Allen,  350;  Hoxie  v.  Hoxie,  7  Paige, 
187  ;  Blatch  v.  Wilder,  1  Atk.  420 ;  Withers  i>.  Yeadon,  1  Rich.  Eq.  324 ;  Wat- 
son v.  Mayrant,  1  Rich.  Eq.  449. 

387 


§    499  TRUSTS.  [part   II. 

will,  by  raising  an  implied  trust  in  favor  of  the  vendee, 
treat  the  vendor  as  his  trustee  in  respect  to  the  land  to  be 
conveyed,  and  the  trust  will  be  enforced  by  a  decree  for 
specific  performance.1 

§499.  Resulting  trusts. — These  trusts  arise  in  two 
principal  cases :  First,  where  only  a  part  of  the  trust  is 
declared  ^  and  the  rest  remains  undisposed  of.  In  such  a 
case  there  is  a  resulting  trust  in  favor  of  the  grantor.  Re- 
sulting trusts  of  this  class  are  such  as  result  to  the  grantor, 
but  which,  on  account  of  the  terms  of  the  conveyance,  can- 
not be  executed  as  uses.  Where  the  statute  can  operate, 
the  equitable  interest  is  a  resulting  use,  and  becomes  a  legal 
estate  under  the  statute.  Resulting  interests  in  chattels, 
held  in  trust,  are  resulting  trusts,  and  not  resulting  uses.2 
Thus,  in  the  devise  of  an  income  to  one,  when  he  becomes 
of  age,  there  is  a  resulting  trust  in  the  immediate  income 
to  the  devisor's  heirs  ;  or  where  property  is  directed  to  be 

1  1  Spence  Eq.  Jur.  509 ;  Jackson  ».  Morse,  16  Johns.  197 ;  Connor  v. 
Lewis,  16  Me.  268;  Coman  v.  Lakey,  80  N.  Y.  345;  Pelton  v.  Westchester 
Fire  Ins.  Co.,  77  N.  Y.  605;  Musham  v.  Musham,  87  111.  80;  Felch  v.  Hooper, 
119  Mass.  52;  Bowie  v.  Berry,  3  Md.  Ch.  359;  Knox  v.  Gve,  L.  R.  5  H.  L. 
Cas.  656.  But  there  must,  of  course,  be  a  written  agreement  of  sale  to  sat- 
isfy the  Statute  of  Frauds,  or  such  a  part  performance  as  will  take  the  case 
out  of  the  statute.  Harris  v.  Barnett,  3  Gratt.  339 ;  Hill  v.  Meyers,  43  Pa.  St. 
170;  Phillips  v.  Thompson,  1  Johns.  Ch.  131 ;  Ryan  v.  Dox,  34  N.  J.  312 ;  3 
Washb.  on  Real  Prop.  215.  An  implied  trust  will  also  arise  in  favor  of 
partnership-creditors  in  respect  to  the  partnership  property,  when  the  insol- 
vency of  a  firm  or  of  its  members  creates  a  contention  of  interests  between 
the  partnership  creditors  and  the  creditors  of  the  individual  partners.  Hast- 
ings v.  Drew,  76  N.  Y.  9;  Bartlett  v.  Drew,  57  Id.  587;  Murray  v.  Murray.  5 
Johns.  Ch.  60;  Westw.  Skip,  1  Ves.  sr.  239;  Campbell  v.  Mullett,  2  Sw.  551 ; 
Knox  v.  Gye,  L.  R.  5  H.  L.  Cas.  656. 

2  They  are  called  resulting  trusts,  because  they  cannot  be  executed  by  the 
statute.  In  every  other  respect  they  are  like  resulting  uses,  and  will  arise  only 
under  such  circumstances  as  would  cause  a  resulting  use  in  the  freehold  estate. 
A  resulting  trust  in  a  chattel  only  arises  when  there  is  no  consideration  to  the 
grantor  and  no  consideration  expressed  in  the  grant.  For  the  particular  cases 
in  which  there  will  be  a  resulting  use,  and,  if  it  be  a  chattel  interest,  a  result- 
ing trust,  see  ante,  sect.  443. 

388 


CH.  XIII.]  TRUSTS.  §    499 

sold  for  certain  purposes,  and  the  proceeds  are  more  than 
sufficient  for  the  purposes  of  the  trust,  there  is  a  resulting 
trust  in  the  surplus  to  the  heirs  of  the  devisor.1  There  is 
also  a  resulting  trust  in  favor  of  the  grantor  and  his  heirs 
where  the  purposes  of  the  express  trust  have  failed,  from 
whatever  cause  the  failure  may  arise.  Thus,  if  the  trust  be 
to  appoint  the  estate  in  favor  of  a  certain  person,  and  the 
trustee  fails  to  appoint,  or  the  person  dies  before  appoint- 
ment, the  trust  will  result  to  the  grantor.2  The  trustee  will 
in  none  of  these  cases  enjoy  the  trust,  even  though  a  nomi- 
nal consideration  be  mentioned  in  the  deed.  Nothing  will 
prevent  the  resulting  of  the  trust  to  the  grantor  but  the 
payment  of  an  adequate,  or  at  least  substantial,  considera- 
tion.3    The  nominal  consideration  will  prevent  the  resulting 

1  Lloyd  v.  Lloyd,  L.  R.  7  Eq.  458 ;  Longley  v.  Longley,  L.  R.  13  Eq.  133 ; 
Cottinger  v.  Fletcher,  2  Atk.  155;  Lloyd  v.  Spillet,  2  Id.  149;  Ellcock  v. 
Mapp,  3  H.  L.  Cas.  492 ;  Davidson  v.  Foley,  2  Bro.  Ch.  203  ;  Halford  v.  Stains, 
16  Sim.  488 ;  Watson  v.  Hayes,  5  My.  &  Cr.  125 ;  Sewell  v.  Denny,  10  Beav. 
315;  Read  v.  Stedman,  26  Id.  495;  Esterbrooks  v.  Tillinghast,  5  Gray,  17; 
Hogan  v.  Jaques,  19  N.  J.  Eq.  123;  Loring  v.  Elliot,  16  Gray,  568;  Hogan  v. 
Stayhorn,  65  K  C.  279;  McCallister  v.  Willey,  52  Ind.  382;  Trapnall  v. 
Brown,  19  Ark.  39 ;  Pouce  v.  McEloy,  47  Cal.  154 ;  Kennedy  v.  Nunan,  52 
Cal.  326. 

2  1  Cruise  Dig.  375,  394 ;  Ashhurst  v.  Givens,  5- Watts  &  S.  327 ;  Sturte- 
vant  v.  Jaques,  14  Allen,  523;  Shaw  v.  Spencer,  100  Mass.  382;  Nichols  v. 
Allen,  130  Mass.  211 ;  Olliffe  v.  Wells,  130  Mass.  221 ;  Dashiell  v.  Att'y-Gen., 
6  Har.  &  J.  1 ;  Power  v.  Cassidy,  79  N.  Y.  602 ;  Lemmond  v.  Peoples,  6  Tred. 
Eq.  137;  Bawley  v.  James,  5  Paige,  318;  Straat  v.  Uhrig,  56  Mo.  482;  Ben- 
nett v.  Hudson,  33  Ark.  762 ;  Russ  v.  Mebius,  16  Cal.  350 ;  Ackroyd  v.  Smith- 
son,  1  Bro.  Ch.  503 ;  Goodere  v.  Lloyd,  3  Sim.  538 ;  Taylor  v.  Haygarth,  14 
Sim.  8;  Williams  v.  Coade,  10  Ves.  500;  Davenport  v.  Coltimn,  12*  Sim.  588; 
James  v.  Allen,  3  Meriv.  17;  Stubbs  v.  Sargon,  3  My.  &  Cr.  507;  Kendall  v 
Granger,  5  Beav.  300 ;  Williams  v.  Kershaw,  5  CI.  &  Fin.  Ill;  Richards  v. 
Delbridge,  L.  R.  18  Eq.  11 ;  Carrick  v.  Errington,  2  P.  Wms.  361  ;  Coard  v. 
Holderne3s,  20  Beav.  147 ;  Pawson  v.  Brown,  L.  R.  13  Ch.  202 ;  Pilkington  v. 
Boughey,  12  Sim.  114 ;  Dawson  v.  Clark,  18  Ves.  247 ;  Att'y-Gen.  v.  Windsor, 
8  H.  L.  Cas.  369;  Ashton  v.  Wood,  L.  R.  6  Eq.  419;  Stansfield  v.  Habergham, 
10  Ves.  273 ;  Wood  v.  Cox,  2  My.  &  Cr.  507. 

3  1  Spence  Eq.  Jur.  467 ;  Orton  v.  Knab,  3  Wis.  576 ;  2  Washb.  on  Reai 
Prop.  438;  2  Pom.  Eq.  Jur.,  sect.  1033. 

389 


§    500  TRUSTS.  [PAET    II. 

of  such  a  use  as  will  be  executed  by  the  statute,  but  will 
have  no  effect  upon  the  resulting  trust. 

§  500.  Same  —  Payment  of  consideration. — The  sec- 
ond class  of  resulting  trusts  includes  those  cases,  in  which 
the  estate  is  purchased  in  the  name  of  one  person  and  the 
consideration  is  paid  by  another.  But  two  circumstances 
must  concur  in  order  that  a  trust  may  result  to  the  one  pay- 
ing the  consideration :  First,  the  execution  of  the  deed  in 
the  name  of  the  one  person  must  be  the  result  of  some 
fraud,  accident,  or  mistake.  Or,  if  it  is  done  with  the 
knowledge  and  consent  of  the  person  paying  the  considera- 
tion, his  intention  that  he  should  have  the  beneficial  interest 
in  the  estate  must  be  clearly  established.1     Secondly,  the 

1  Dyer  v.  Dyer,  2  Cox,  92;  1  Eq.  Ld.  Cas.  314;  Lloyd  v.  Eead,  1  P.  Wms. 
607;  Withers  v.  Withers,  Ambl.  151 ;  Eider  v.  Kidder,  10  Yes.  360;  Medmer 
v.  Medmer,  26  N.  J.  Eq.  269;  Smith  v.  Patton,  12  W.  Va.  541;  Billings  v. 
Clinton,  6  S.  C.  90;  Lee  v.  Browder,  51  Ala.  288;  Thomas  v.  Standiford,  49 
Md.  181 ;  Tilford  v.  Torrey,  53  Ala.  120;  Cunningham  v.  Bell,  83  N.  C.  328; 
Kelley  v.  Jenness,  50  Me.  455 ;  Hopkinson  v.  Dumas,  42  N.  H.  306 ;  Kendall 
v.  Mann,  11  Allen,  15;  Nixon's  App.,  63  Pa.  St.  279;  Clark  v.  Clark,  43  Yt. 
685 ;  Boyd  v.  McLean,  1  Johns.  Ch.  582 ;  Brooks  v.  Shelton,  54  Miss.  353 ; 
Hampson  v.  Fall,  64  Ind.  382;  Duval  v.  Marshall,  30  Ark.  230;  Dean  v.  Dean, 
6  Conn.  285;  McGovern  v.  Knox,  21  Ohio  St.  547;  Latham  v.  Henderson,  47 
111.  185;  Mathis  v.  Stufflebeam,  94  111.  481;  Moss  v.  Moss,  95  111.  449;  John- 
son v.  Quarles,  47  Mo.  423;  McLenan  v.  Sullivan,  13  Iowa,  521;  Boskowitzv. 
Davis,  12Nev.  446;  Logan  v.  Walker,  1  Wis,  527;  Case  v.  Codding,  38  Gal. 
191;  Eoberts  v.  Ware,  40  Cal.  634;  Baumgartner  v.  Guessfeld,  38  Mo.  36; 
Jackson  v.  Cleveland,  15  Mich.  102;  Smith  v.  Strahan,  16  Texas,  314;  Sayre 
v.  Townsend,  15  Wend.  647.  The  payment  of  the  consideration  and  the  in- 
tention of  the  parties  in  respect  to  the  beneficial  interest  may  be  established 
by  parol  evidence,  even  against  the  express  recitals  of  the  deed.  But  the  evi- 
dence must  be  clear.  It  would  seem  that  this  would  be  a  clear  violation  of  the 
Statute  of  Frauds,  where  the  deed  was  taken  in  the  name  of  another  with  the 
understanding  that  the  one  paying  the  consideration  shall  be  the  beneficial  or 
equitable  owner.  For  it  is  difficult  to  see  in  what  way  such  a  trust  differs  from 
an  express  trust,  which  is  required  to  be  manifested  by  some  writing.  But  the 
decisions  have  held  that  it  was  not  necessary  for  it  to  be  in  writing,  and  such 
must  be  taken  to  be  the  law.  See  Willis  v.  Willis,  2  Atk.  71 ;  Gascoigne  v. 
Thwing,  1  Vern.  366:  Heard  v.  Pilley,  L.  E.  4  Ch.  548;  Baker  v.  Yining,  30 
Me.  121 ;  Bovd  v.  McLean,  1  Johns.  Ch.  582 ;  Hennesy  v,  Walsh,  56  N.  H. 
390 


CH.  XIII.]  TRUSTS.  §    500 

consideration  must  be  paid  by  the  person  claiming  the  re- 
sulting trust  at  the  time  of  the  transaction  of  sale  or  con- 
veyance. Any  subsequent  payment  of  the  consideration  by 
such  person,  even  though  he  has  been  compelled  to  do  so 
as  surety  of  the  grantee,  will  not  raise  a  trust.1     The  ab- 

515;  Parker  v.  Snyder,  31  N.  J.  Eq.  164;  Livermore  v.  Aldrich,  5  Cush.  431 ; 
.Jackson  v.  Feller,  2  Wend.  465;  Stumpfer  v.  Roberts,  18  Pa.  St.  283;  Whit- 
more  v.  Learned,  70  Me.  276;  Thomas  v.  Standiford,  49  Md.  181;  Miller  v. 
Blose's  Ex'or,  30  Gratt.  744;  Hyden  v.  Hyden,  6  Baxt.  406;  Coates  v.  Wood- 
worth,  13  111.  654;  Lee  v.  Browder,  51  Ala.  288;  Agricultural  Ass'n  v.  Brew- 
ster, 51  Texas,  257;  Byers  v.  Wackman,  16  Ohio  St.  440;  Bryant  v.  Hendricks, 
5  Iowa,  256;  Murphy  v.  Peabody,  63  Ga.  522;  Billings  v.  Clinton,  6  S.  C.  90; 
Drum  v.  Simpson,  6  Binn.  478;  Smith  v.  Patton,  12  W.  Va.  541;  McCreary 
v.  Case}',  50  Cal.  349 ;  Ward  v.  Armstrong,  84  111.  151.  In  like  manner  the 
presumption  of  a  trust  arising  from  the  payment  of  the  consideration  may  be 
rebutted  by  parol  evidence,  showing  that  the  one  paying  the  consideration  in- 
tended that  the  grantee  in  the  deed  should  have  the  benefit  of  the  purchase  as 
a  gift,  provided  such  parol  evidence  does  not'contradict  the  terms  of  the  deed. 
Lane  v.  Dighton,  Ambl.  409;  Benbow  v.  Townsend,  1  My.  &  K.  506;  Hopkin- 
son  v.  Dumas,  42  N.  H.  303;  Edwards  v.  Edwards,  39  Pa.  St.  378;  Carter  v, 
Montgomery,  2  Tenn.  Ch.  216;  White  v.  Carpenter,  2  Paige,  238;  Perkins  v. 
Nichols,  11  Allen,  545;  Adams  v.  Greerard,  26  Ga.  651;  Shepherd  v.  White, 
11  Texas,  346.  Resulting  trusts  are  now  regulated  by  statute  in  New  York, 
Michigan,  Indiana,  Kentucky,  Minnesota,  Wisconsin  and  Kansas.  They  all 
substantially  abolish  such  resulting  trusts  as  arise  in  a  conveyance  to  one  per- 
son in  favor  of  another  who  has  paid  the  consideration,  except  in  favor  of  the 
judgment-creditors  of  the  latter.  They  may  enforce  the  trust  in  their  behalf 
if  they  were  creditors  at  the  time  of  the  conveyance.  2  R.  S.  N.  Y.  (1875) 
1105,  sects.  51,  52,  53 ;  2  Comp.  Laws  Mich.  (1871)  1331,  sects.  7,  8,  9;  1  R.  S. 
Wis.  1129,  sects.  7,  8,  9;  Comp.  Laws  Kan.,  p.  989,  sects.  6,  7,  8.  But  the 
statutes  expressly  except  those  cases  where  the  deed  has  been  taken  in  the 
name  of  another,  through  some  accident,  fraud  or  mistake.  For  cases  in 
which  these  statutes  have  been  under  consideration  see  Reitz  v.  Reitz,  80  N.  Y. 
638 ;  Siemon  v.  Schurck,  29  N.  Y.  598 ;  Weare  v.  Linnell,  29  Mich.  224 ;  Munch  v. 
Shabel,  37  Mich.  166;  Derry  v.  Derry,  74  Ind.  560;  Hon  v.  Hon,  70  Ind.  135; 
Catherwood,  65  Ind.  576  ;  Baker  v.  Baker,  22  Minn.  262  ;  Rogers  v.  McCauley, 
Id.  38 1;  Durfee  v.  Pavitt,  14  Minn.  422;  Graves  v.  Graves,  3  Mete.  167;  Ken- 
nedy v.  Taylor,  20  Kan.  558 ;  Mitchell  v.  Skinner,  17  Kan.  563 ;  Underwood  v. 
Sutliffe,  77  N.  Y.  51 ;  Traphagen  v.  Burt,  67  N.  Y.  30. 

1  Howell  v.  Howell,  15  N.  J.  Eq.  78 ;  Brooks  v.  Fowler,  14  N.  H.  248 ;  Buck 
v.  Swazey,  35  Me.  41 ;  Kelly  v.  Johnson,  28  Mo.  249 ;  Oliver  v.  Dougherty,  3 
Iowa,  371;  Sullivan  v.  McLenans,  2  Iowa,  442 ;  Baumgartner  v.  Guessfcld, 
38  Mo.  86  ;  Brawner  v.  Staup,  21  Md.  337  ;  Francestown  v.  Deering,  41  N.  H. 
443  ;  Harnett  v.  Dougherty,  32  Pa.  St.  371 ;  Gee  v.  Gee,  32  Miss.  190 ;  Kendall 

391 


§   500  TRUSTS.  [part  II. 

sence  of  either  of  these  circumstances  will  prevent  the  trust 
resulting  from  the  payment  of  the  consideration.1  These 
resulting  trusts  rest  upon  the  presumption  that  the  person 
beneficially  entitled  has  been  deprived  of  his  interest  against 
his  will.  But  where  the  relation  between  the  parties  is  so 
close  as  to  permit  of  the  counter-presumption  that  the  one 
paying  the  consideration  intended  it  as  a  gift  to  the  one  in 
whose  name  the  deed  is  taken,  as  where  the  parties  are  hus- 
band and  wife,  parent  and  child,  and  the  like,  there  will  be 
no  resulting  trust.2     But  this  is  only  a  presumption  of  law 

v.  Mann,  11  Allen,  17;  Perkins  v.  Nichols,  11  Allen,  546;  Kellum  v.  Smith,. 
33  Id.  164;  Alexanders  Tarns,  13  III.  221;  Perry  v.  McHenry,  33  Id.  227; 
Davis  v.  Wetherell,  11  Allen,  20;  Whiting  v.  Gould,  2  Wis.  552;  Hopkinson 
v.  Dumas,  42  N.  H.  301 ;  Pegnes  v.  Pegnes,  5  Ired.  Eq.  418.  So  also  will  a 
trust  result  to  one  who  pays  a  part  of  the  purchase-money  with  the  intention 
that  he  shall  have  an  interest  in  the  land.  But  in  order  that  there  may  be  a 
resulting  trust  in  his  favor,  the  exact  amount  which  he  advances  must  be 
clearly  established.  Any  doubt  or  uncertainty  in  that  respect  will  prevent  the- 
trust  from  resulting.  Purdy  v.  Purdy,  3  Md.  Ch.  547 ;  Shoemaker  v.  Smith,. 
11  Humph.  81 ;  Miller  v.  Birdsong,  7  Baxt.  531 ;  Smith  v.  Patton,  12  W.  Va. 
541 ;  Pierce  v.  Pierce,  7  B.  Mon.  438 ;  Franklin  ».  McEntire,  23  111.  91 ;  Smith 
v.  Smith,  85111.  189;  Cramer  v.  Hoose,  93  111.  503;  Shea  v.  Tucker,  56  Ala. 
450;  Hidden  V.Jordan,  21  Cal.  92;  Bayles  v.  Baxter,  22  Cal.  578;  Cases 
Codding,  38  Cal.  191  ;  McCreary  v.  Casey,  50  Cal.  349 ;  Wray  v.  Steele,  2  V. 
&B.  388;  Barron  v.  Barron,  24  Vt.  375;  McGowan  v.  McGowan,  14  Gray, 
119 ;  Harper  v.  Phelps,  21  Com.  257 ;  Williams  v.  Hollingsworth,  1  Strobh. 
Eq.  103 ;  Botsford  v.  Burr,  2  Johns.  Ch.  405 ;  Smith  v.  Strahan,  16  Texas,  314 ; 
Sayre  v.  Townsend,  15  Wend.  647  ;  Wallace  v.  Duffield,  2  Serg.  &  R.  521. 

1  McCue  v.  Gallagher,  23  Cal.  53 ;  Gee  v.  Gee,  32  Miss.  190 ;  Dow  v.  Jew- 
ell, 21  N.  H.  470;  Gibson  v.  Foote,  40  Miss.  792 ;  Hunt  v.  Moore,  6  Cush.  1 ; 
Ramsdell  v.  Emory,  46  Me.  311 ;  Jackman  v.  Kingland,  4  W.  &  S.  149;  Bots- 
ford v.  Burr,  2  Johns.  Ch.  405;  Stephenson  v.  Thompson,  13  HI.  186  ;  McCul- 
lough  v.  Ford,  96  HI.  439;  House  v.  House,  57  Ala.  262;  Kennedy  v.  Price, 
57  Miss.  771 ;  Hennesy  v.  Walsh,  55  N.  H.  515,  and  cases  cited  in  the  preceding 
notes. 

2  It  is  presumed  to  be  a  gift,  because  the  purchasers  in  the  cases  supposed, 
husband  and  father,  are  under  a  moral  or  quasi  legal  obligation  to  maintain 
the  persons  in  whose  names  the  deeds  are  taken,  viz.,  wife  and  child.  1  Cruise 
Dig.  394:  1  Spence  Eq.  Jur.  511 ;  Kingdon  v.  Bridges,  2  Vern.  67;  Dyer  s 
Dyer,  2  Cox,  92 ;  Eider  v.  Kidder,  10  Ves.  360 ;  Finch  v.  Finch,  15  Ves.  43 ; 
Williams  v.  Williams,  32  Beav.  370 ;  Sayre  v.  Hughes,  L.  R.  5  Eq.  376 ;  Mar- 
shall v.  Crutwell,  L.  R.  20  Eq.  328;  Livingstons  Livingston,  2  Johns.  Ch*. 

392 


CH.  XIII.]  TRUSTS.  §    500 

in  rebuttal  to  the  presumption  of  a  trust  raised  by  the  pay- 
ment of  the  consideration.  If  it  is  shown  that  the  deed 
was  taken  in  the  name  of  the  wife  or  child  through  a  mis- 
take of  the  scrivener,  or  the  fraud  of  some  one,  or  with  the 
intention  that  the  husband  or  father  should  have  the  equita- 
ble interest,  the  trust  will  result  as  in  any  other  case.1 

537 ;  Farnell  v.  Lloyd,  69  Pa.  St.  239 ;  Lorentz  v.  Lorentz,  14  W.  Va.  809 ; 
Douglass  v.  Brice,  4  Rich.  Eq.  322  ;  Stevens  v.  Stevens,  70  Me.  92 ;  Welton  v. 
Divine,  20  Barb.  9;  Lochenour  v.  Lochenour,  61  Ind.  595;  Smith  v.  Strahan, 
16  Texas,  314;  Sunderland  v.  Sunderland,  19  Iowa,  338;  Baker  v.  Baker,  22 
Minn.  262.  And  the  same  presumption  prevails  wherever  one  purchases 
property  in  the  name  of  another,  while  the  former  stands  in  loco  parentis  (be- 
tween mother  and  child).  In  re  De  Visme,  2  De  G.,  J.  &  S.  17 ;  Batstone  v. 
Salter,  L.  R.  19  Eq.  250.  But  see  Murphy  v.  Nathans,  46  Pa.  St.  508 ;  Shaw 
v.  Read,  47  Pa.  St.  103;  Flynt  v.  Hubbard,  57  Miss.  471  (between  grandfather 
and  grandchild);  Co.  Lit.  290  b,  note  249,  sect.  8;  Ebrand  v.  Dancer,  2  Chan. 
Cas.  26.  See  generally  Beckford  v.  Beckford,  Lofft.  490 ;  Loyd  v.  Read,  1  P. 
Wms.  607;  Tucker  v.  Burrow,  2  Hem.  &  M.  515;  Sayre  v.  Hughes,  L.  R.  5 
Eq.  376;  Currant  v.  Jags,  1  Coll.  261;  Smith  v.  Patton,  12  W.  Va.  541;  Hig- 
don  v.  Higdon,  57  Miss.  264.  On  the  other  hand  there  is  no  presumption  of 
a  gift  where  the  deed  is  taken  in  the  name  of  the  husband  or  father,  and  the 
purchase-money  is  paid  by  the  wife  or  child.  Howell  v.  Howell,  15  N.  J.  Eq. 
77 ;  Beck's  Ex'ors  v.  Graybill,  28  Pa.  St.  66 ;  Thomas  v.  Standiford,  49  Md. 
181;  Loften-».  Witboard,  92  111.  461;  Moss  v.  Moss,  95  111.  449;  Catherwood 
v.  Watson,  65  Ind.  575;  Squire  v.  Harder,  1  Paige,  494;  Russ  v.  Mebius,  16 
Cal.350;  Cunninghams  Bell,  83  N.  C.  328;  Tilford  v.  Torrey,  53  Ala.  120; 
Leman  v.  "Whitley,  4  Russ.  423. 

1  Wallace  v.  Bowens,  28  Vt.  638 ;  Sawyer's  Appeal,  16  N.  H.  414 ;  Dickin- 
son v.  Davis,  43  N.  H.  647 ;  Jackson  v.  Matadurf,  11  Johns.  91 ;  Livingston  v. 
Livingston,  2  Johns.  Ch.  539;  Stevens  v.  Stevens,  70  Me.  92;  Baker  v.  Vin- 
ing,  30  Me.  121 ;  Rankin  v.  Harper,  23  Mo.  579 ;  Eddy  v.  Baldwin,  23  Mo.  588 ; 
Springer  v.  Berry,  47  Me.  338 ;  Shepherd  v.  White,  10  Texas,  72 ;  Guthrie  v. 
Gardner,  19  Wend.  414 ;  Smith  v.  Strahan,  16  Texas,  314 ;  Lampleigh  v.  Lamp- 
leigh,  1  P.  Wms.  Ill;  Sidmouth  v.  Sidmouth,  2  Beav.  447;  Williams  v.  Wil- 
liams, 32  Beav.  370;  Kilpin  v.  Kilpin,  1  My.  &  R.  520;  Devoy  v.  Devoy,  3 
Sm.  &  Giff.  403.  It  has  been  held  that  there  can  be  no  resulting  trust  in  favor 
of  a  husband  in  property  in  the  name  of  the  wife,  because  the  wife  cannot  be 
trustee  for  the  husband.  1  Cruise  Dig.  402  ;  Kingdon  v.  Bridges,  2  Vern.  67 ; 
Alexander  v.  Warrance,  17  Mo.  228;  Jencks  v.  Alexander,  11  Paige  Ch.  619. 
This  technical  rule  is  not  presumed  to  prevail  in  this  country  as  an  obstacle  in 
the  way  of  raising  a  resulting  trust,  and  certainly  not  in  those  States  where 
the  wife  is  treated,  in  respect  to  her  property,  as  a  feme  sole.  See  cases  cited* 
supra. 

393 


§    501  TRUSTS.  [PART    II. 

§  501.  Constructive  trusts.  —  Constructive  trusts  arise 
where  the  trustee  or  any  other  person  holding  a  fiduciary 
position,  by  fraud,  actual  or  constructive,  makes  an  illegal 
disposition  of  the  trust  property  to  the  injury  of  the  cestui 
que  trust  or  beneficiary.  The  latter  can,  at  his  election, 
follow  such  trust  property  into  whosesoever  hands  it  may 
come  with  notice  of  the  trust.1  And  it  matters  not  whether 
the  original  holding  of  such  property  was  legal  or  illegal ; 
if,  afterwards,  it  becomes  illegal,  the  same  rule  will  apply.2 
The  most  common  instances  of  constructive  trusts  are  pur- 
chases by  the  trustee  of  trust  property  at  his  own  sale,  or 
an  illegal  conveyance  by  him  to  one  having  notice  of  the 
trust,  or  paying  no  valuable  consideration.  It  is  a  general 
rule  of  law  that  a  trustee  cannot  purchase  at  his  own  sale, 
and  if  he  does  he  cannot  acquire  an  absolute  title.  It  is 
voidable  at  the  election  of  the  cestui  que  trust.  Until  an 
avoidance  or  ratification  by  him  there  is  a  constructive  trust 
raised  in  his  favor.3     But  this  rule  does  not  prevent  him 


1  2  Washb.  on  Ileal  Prop.  447 ;  1  Spence  Eq.  Jur.  511 ;  2  Pom.  Eq.  Jur. 
1044;  Perry  on  Tr.,  sect.  166. 

2  Thus,  if  a  mortgage  is  given  jointly  to  two,  and  one  dies,  the  survivor 
would  hold  the  mortgage  as  trustee  for  himself  and  the  heirs  and  personal  rep- 
resentatives of  the  deceased.  Buck  v.  Swazey,  35  Me.  41 ;  Randall  v.  Phil- 
lips, 3  Mason,  378 ;  Caines  v.  Grant,  5  Binn.  119. 

3  Jennison  v.  Hapgood,  7  Pick.  8 ;  Gardner  v.  Ogden,  22  N.  Y.  327 ;  Col- 
lins v.  Smith,  1  Head,  251 ;  Swinburne  v.  Swinburne,  28  N.  Y.  568 ;  Bellamy 
v,  Bellamy,  6  Fla.  62 ;  McNish  v.  Pope,  8  Rich.  Eq.  112 ;  Brown  v.  Lynch,  1 
Paige,  167;  Hubbell  v.  Medbury,  53  N".  Y.  98;  Hoffman,  etc.,  Co.  v.  Cumber- 
land, etc.,  Co.,  16  Md.  507 ;  Jamison  v.  Glasscock,  29  Mo.  191 ;  Fairman  v. 
Bavin,  29  111.  76 ;  Charles  v.  Dubose,  29  Ala.  367 ;  Huff  v.  Earl,  3  Ind.  306 ; 
Herr's  Estate,  1  Grant  Cas.  272 ;  Baldwin  v.  Allison,  4  Minn.  25 ;  Gaerrers  v. 
Bailleno,  48  Cal.  118;  Scott  v.  Umbarger,  41  Cal.  410;  Boyd  v.  Blankman,  29 
Cal.  20 ;  Mitchell  v.  Berry,  1  Mete.  (Ky.)  602 ;  McCrary  v.  Foster,  1  Iowa, 
276;  Grumley  v.  Grumley,  44  Mo.  444;  Cookson  v.  Richardson,  69111.  137; 
Newton  v.  Taylor,  39  Ohio  St.  399;  Rea  v.  Copelin,  47  Mo.  76;  Broyles  r. 
Nowlin,  59  Tenn.  191;  Reickhoff  v.  Brecht,  51  Iowa,  633;  Pindall  v.  Trevor. 
30  Ark.  249 ;  Blauvelt  v.  Ackerman,  20  N.  J.  Eq.  141 ;  Barnett  o.  Baraber,  81 
Pa.  St.  247 ;  Webster  v.  King,  33  Cal.  348 ;  Tracy  v.  Colby,  55  Cal.  07 ;  Tracy 
v.  Craig,  55  Cal  359 ;  Davis  v.  Rock  Creek,  55  Cal.  359 ;  Giddings  v.  Eastman, 

394 


CH.  XIII.]  TRUSTS.  §    501 

from  purchasing  the  trust  property  with  the  consent  of  the 
cestui  que  trust,  provided  the  latter  is  of  age.  But  such 
transactions  are  closely  watched,  and  if  the  consideration 
paid  therefor  be  not  adequate,  the  courts  are  greatly  dis- 
posed to  set  aside  the  sale.1  In  the  same  manner  if  the 
trustee  attempts  to  make  an  illegal  disposition  of  the  land, 
his  grantee  will  take  it  bound  with  a  constructive  trust  in 
favor  of  the  cestui  que  trust,  unless  he  has  had  no  actual  or 
constructive  notice  of  the  trust,  and  has  paid  a  valuable 
consideration.2     These  are  only  the  more  common  instances 

5  Paige,  561 ;  Reitz  v.  Reitz,  80  K  Y.  538 ;  Smith  v.  Stephenson,  45  Iowa, 
645;  Mathews  v.  Light,  32  Me.  305;  Manning  v.  Hayden,  5  Sawyer,  360; 
Jones  v.  Dexter,  130  Mass.  380;  "Whitwell  v.  "Warner,  26  Vt.  425;  Blount  v. 
Robeson,  3  Jones  Eq.  73;  Hastings  v.  Drew,  76  N.  Y.  9;  Bennett  v.  Austin, 
81  N.  Y.  308;  Smith  v.  Frost,  70  N.  Y.  605;  Treadwell  v.  McKeon,  7  Baxt. 
201;  Foxu.  Mackreth,  2  Bro.  Ch.  400;  Church  v.  Sterling,  16  Conn.  388;  1 
Eq.  Ld.  Cas.  188,  et  seq.;  Powell  v.  Glover,  3  P.  Wms.  252;  Kimber  v.  Bar- 
ber, L.  R.  8  Ch.  56;  Heath  v.  Crealoek,  L.  R.  18  Eq.  215;  In  re  Hallett's 
Estate,  L.  R.  13  Ch.  696 ;  Wedderburn  v.  Wedderburn,  4  My.  &  Cr.  41 ; 
Willettu.  Blanford,  1  Harr.  253;  Pawcett  v.  Whitehouse,  1  Russ.  &  M.  132; 
Great  Luxembourg  Ry.  Co.  v.  Magnay,  25  Beav.  586 ;  Barnes  v.  Addy,  L.  R. 
9  Ch.  244. 

1  Downes  v.  Grazebrook,  3  Meriv.  208 ;  Ex  parte  Lacey,  6  Ves.  625 ;  Morse 
v.  Royal,  12  Ves.  355 ;  Denton  v.  Donner,  23  Beav.  285 ;  Coles  v.  Trecsthick,  9 
Ves.234;  Spencer  v.  Newbold's  Appeal,  80  Pa.  St.  317;  Bayan  v.  Duncan,  11 
Geo.  67;  Sallee  v.  Chandler,  26  Mo.  124;  Richardson  v.  Spencer,  18  B.  Mon. 
450;  Kennedys.  Kennedy,  2  Ala.  571;  Villines  v.  Norfleet,  2  Dev.  Eq.  167; 
Mitchell  v.  Berry,  1  Mete.  (Ky.)  602;  Marshall  v.  Stephens,  8  Humph.  159. 
See  also,  in  respect  to  purchases  by  agent  of  principal's  property.  Fisher's 
Appeal,  34  Pa.  St.  29 ;  Marshall  v.  Joy,  17  Vt.  546  ;  Moore  v.  Mandlebaum,  8 
Mich.  433;  Burrell  v.  Bull,  3  Sandf.  Ch.  15;  Young  v.  Hughes,  32  N.  J.  Eq. 
372;  Farnam  v.  Brooks,  9  Pick.  212;  Walker  v.  Carrington,  74111.  446;  Kuntz 
v.  Fisher,  8  Kan.  90 ;  Mahon  v.  McGraw,  26  Wis.  614. 

2  Thompson  v.  Wheatley,  5  Smed.  &  M.  499 ;  Fillman  v.  Divers,  31  Pa.  St. 
42;  Hopkinson  v.  Dumas,  42  N.  H.  304;  Shryock  v.  Waggoner,  28  Pa.  St. 
430;  Church  v.  Church,  25  Pa.  St.  278;  Boone  v.  Chiles,  10  Pet.  177;  Lyford 
v.  Thurston,  16  N.  H.  408;  Stewart  v.  Chadwick,  8  Iowa,  463;  Paul  r.  Fulton, 
25  Mo.  156 ;  McVey  v.  Quality,  97  111.  93 ;  Dey  v.  Dey,  26  N.  J.  Eq.  182 ; 
Palmer  v.  Oakley,  2  Dougl.  (Mich.)  433;  Veile  v.  Blodgett,  49  Vt.  270;  Mur- 
ray v.  Ballou,  1  Johns.  Ch.  566;  Phelps  v.  Jackson,  31  Ark.  272;  Planter's 
Bk.  v.  Prater,  61  (hi.  609;  Dotterer  v.  Pike,  60  Ga.  29;  Musham  v.  Musham, 
87  111.  80;  Swinburne  v.  Swinburne,  28  N.  Y.  568;  Newton  v.  Porter,  69  N. 

395 


§    501  TRUSTS.  [PART    II. 

of  constructive  trusts.  But  there  are  many  others,  and  it 
may  be  stated  as  the  invariable  rule  that  where  there  has 
been  a  fraud  committed  in  the  disposition  or  acquisition  of 
property,  equity  will  raise  a  constructive  trust  in  favor  of 
the  person  defrauded,  unless  it  will  interfere  with  and  affect 
the  interests  of  innocent  third  persons.  Thus,  if  one  em- 
bezzles money  intrusted  to  his  care  and  invests  it  in  real 
estate,  the  person  to  whom  the  money  belongs  will  have  a 
constructive  trust  in  such  land  as  against  every  one  except 
an  innocent  subsequent  purchaser.1  And  the  invalidity  of  a 
voluntary  conveyance  as  against  the  creditors  of  the  grantor 
may  be  ascribed  to  the  application  of  the  same  principle. 
The  creditors  have  a  constructive  trust  in  the  property  of 


Y.  133 ;  Siemon  v.  Schurck,  29  N.  Y.  598 ;  Russell  v.  Clark's  Ex'ors,  7  Cranch, 
69;  Mercier  v.  Hemme,  50  Cal.  427 ;  Sharpe  v.  Goodwin,  51  Cal.  219;  Boyd 
v.  Brincken,  55  Cal.  427;  Griffin  v.  Blanchar,  17  Cal.  70;  Winona,  etc.,  R.  R. 
v.  St.  Paul,  etc.,  R.  R.,  26  Minn.  179. 

1  Footer.  Colvin,  3  Johns.  216;  Murdock  v.  Hughes,  7  Smed.  &  M.  219; 
Prevost  v.  Gratz,  1  Pet.  C.  Ct.  364 ;  Philips  ».  Crammond,  2  Wash.  C.  Ct.  441 ; 
Johnson  v.  Dougherty,  18  N.  J.  Eq.  406 ;  Robb's  Appeal,  41  Pa.  St.  45 ;  Smith 
v.  Burnham,  3  Sumn.  435;  Thomas  v.  Walker,  6  Humph.  92;  Turner  v.  Pet- 
tigrew,  6  Humph.  438 ;  Wallace  v.  Duffield,  2  Serg.  &  R .  521 ;  Williams  v. 
Turner,  7  Ga.*348;  Pratt  v.  Oliver,  2  McLean,  313;  3  How.  (U.  S.)  333; 
Duncan  v.  Jandon,  15  Wall.  165;  Hubbard  v.  Burrell,  41  Wis.  365;  Pugh  v. 
Pugh,  9  Ind.  132;  Barker  v.  Barker,  14  Wis.  146;  Barretts  Bamber,  81  Pa. 
St.  247;  McLarrenv.  Brewer,  51  Me.  402;  Church  v.  Sterling,  16  Conn.  388; 
Homer  v.  Homer,  107  Mtss.  82;  Jones  v.  Dexter,  130  M:is~.  380;  Shaw  t>. 
Spencer,  100  Mass.  382 ;  Mathews  v.  Heyward,  2  S.  C.  239 ;  Watson  v.  Thomp- 
son, 12  R.  1.466;  Schlaefer  v.  Carson,  52  Barb.  510;  Ferris  v.  Van  Vechten, 
73  K  Y.  113;  Bancroft  v.  Consen,  13  Allen,  50;  Shelton  v.  Lewis,  27  Ark. 
190;  Mich.,  etc.,  R.  R.  v.  Mellen,  44  Mich.  321;  Derry  v.  Derry,  74  Ind.  560; 
Reickhoff  v.  Brecht,  51  Iowa,  633 ;  White  v.  Drew,  42  Mo.  561 ;  Tilford  v. 
Torrey,  53  Ala.  120 ;  Coles  v.  Allen,  64  Ala.  98 ;  Moss  v.  Moss,  95  111.  449 ; 
Winkfield  v.  Brink-man,  21  Kan.  682 ;  Roy  v.  McPherson,  11  Neb.  197  ;  Thomas 
t.  Standiford,  49  Md.  181 ;  Tracy  v.  Kelley,  52  Ind.  535;  Dodge  v.  Cole,  97 
111.  338;  Settembre  v.  Putnam,  30  Cal.  490;  Jenkins  v.  Frink,  30  Cal.  586; 
Flanders  v.  Thompson,  3  Woods  C.  Ct.  9 ;  Keech  v.  Sandford,  Sel.  Cas.  Ch. 
61 ;  1  Eq.  Ld.  Cas.  48 ;  Deg  v.  Beg,  2  P.  Wms.  412 ;  Lench  v.  Lench,  10  Ves. 
511;  Lane  v.  Dighton,  Ambl.  413;  Ouseley  v.  Anstruther,  10  Beav.  453; 
Trench  v.  Harrison,  17  Sim.  111. 

396 


CH.  XIII.]  TRUSTS.  §    503 

the  debtor  which  follows  the  lands  into  the  hands  of  the 
voluntary  grantees.1 

§  502.  Interest  of  the  cestui  que  trust.  — This  subject 
has  in  the  main  been  already  explained  while  treating  of 
uses  and  trusts  as  they  existed  before  the  statute,2  and  noth- 
ing more  need  now  be  done  than  to  refer  to  the  more  im- 
portant peculiarities  of  modern  trusts,  in  which  they  differ 
from  uses.  Generally,  trusts  at  the  present  day  have  all 
the  characteristics  of  the  ancient  use.  They  are  equitable 
estates,  and  enforceable  solely  in  equity.3 

§  503.  Liability  for  debts.  — For  a  long  time,  and,  in- 
deed, until  within  a  late  period,  an  equitable  estate  was  not 
subject  to  liability  for  the  debts  of  the  beneficiary ;  but 
now  in  England,  and  in  most  of  the  States  of  this  country, 
they  are  by  statute  made  applicable  to  the  satisfaction  of 
his  debts.4     But  the  trust  may  be  so  limited  as  that  it  will 

1  Hills  v.  Eliot,  12  Miss.  31;  Partridge  v.  Messer,  14  G-ray,  180;  Case  v. 
Gerrish,  15  Pick.  49 ;  Bliss  v.  Matteson,  45  N.  Y.  22 ;  Dewey  v.  Moyer,  72  N. 
Y.  70;  Mann  v.  Darlington,  15  Pa.  St.  310;  Haston  v.  Castner,  31  N.  J.  Eq. 
697;  Kahnv.  Gumbert,  19  Ind.  430;  Jones  v.  Reeder,  22  Ind.  Ill;  Brackett 
v.  Waite,  4  Vt.  389;  Salmon  v.  Bennett,  1  Conn.  525;  Clark  v.  Douglass,  62 
Pa.  St.  408 ;  Gridley  v.  Watson,  53  111.  186 ;  Crambaugh  v.  Kugler,  3  Obio 
St.  544;  Pilley  v.  Register,  4  Minn.  391;  Fellows  v.  Smitb,  40  Mich.  689; 
Covven  v.  Alsop,  51  Miss.  158;  Crawford  v.  Kirksey,  55  Ala.  282;  Church  v. 
Chapin,  35  Vt.  223  ;  Freeman  v.  Burnham,  30  Conn.  469 ;  Pomeroy  v.  Bailey, 
43  N.  H.  118;  Ellinger  v.  Crowl,  17  Md.  361 ;  Stewart  u.  Rogers,  25  Iowa,  395. 
See  also  post,  sect.  802. 

2  See  ante,  sects.  438,  439,  446-451. 

3  Co.  Lit.  290  b,  note  249,  sect.  14;  2  Spence  Eq.  Jur.  875;  1  Prest.  Est. 
189 ;  1  Spence  Eq.  Jur.  497 ;  Cholmondeley  v.  Clinton,  2  Jac.  &  W.  148 ;  Bur- 
gess v.  Wheate,  1  Eden,  223;  Orleans  v.  Chatham,  2  Pick.  29;  Banks  v.  Sut- 
ton, 2  P.  Wms.  713;  Bush's  Appeal,  33  Pa.  St.  88;  Price  v.  Sisson,  13  N.  J. 
174 ;  2  Pom.  Eq.  Jur.,  sect.  989 ;  2  Washb.  on  Real  Prop.  454-457. 

*  1  Prest.  Est.  144;  2  Washb.  on  Real  Prop.  456  ;  Pratt  v.  Colt,  2  Freem. 
139;  Forth  v.  Duke  of  Norfolk,  4  Madd.  503 ;  Kip  v.  Bank  of  New  York,  10 
Johns.  63 ;  Jackson  v.  Walker,  4  Wend.  462 ;  Foote  v.  Colvin,  3  Johns.  316 ; 
Johnson  v.  Conn.  Bk.,  21  Conn.  159;  Bush's  Appeal,  33  Pa.  St.  85;  Hutchins 
v.  Hey  wood,  50  N.  H.  491 ;  Bramhall  i>.  Ferris,  14  N.  Y.  41 ;  Campbell  v.  Fos- 
ter, 35  N.  Y.  361;  Lyford  v.  Thurston,  16  N.  H.  408;  Kennedy  v.  Nunan,  52 
Cal.  326  ;  Wis.  Rev.  Stat.  Ch.  134,  sect.  37. 

397 


§    504  TRUSTS.  [part   II. 

be  terminated  when  an  attempt  is  made  to  subject  it  to  the 
debts  of  the  cestui  que  trust.  The  rule  seems  to  be  well  es- 
tablished that  if  the  trust  is  executory  and  its  duration  is 
discretionary  in  the  trustee,  or  where  the  trust  by  the  terms 
of  the  deed  or  will  is  to  cease  upon  an  attempted  involuntary 
conveyance  (i.e.,  when  some  creditor  seizes  upon  the  estate 
for  the  payment  of  a  debt),  or  an  assignment  in  bankruptc}r, 
or  upon  the  insolvency  of  the  cestui  que  trust,  these  are  per- 
missible limitations  upon  the  estate  of  the  beneficiary,  and 
will  prevent  the  transfer  of  any  interest  therein  to  the  cred- 
itors, even  though  there  be  no  limitation  over.1  But  it  will 
not  be  permitted  to  a  man  to  settle  his  estate  in  trust  for 
himself,  and  so  limit  it  that  his  creditors  cannot  touch  it. 
The  rule  only  extends  to  the  settlement  of  such  trusts  by 
friends  and  relatives,  whose  desire  is  to  secure  means  of 
support  for  the  beneficiary,  free  from  liability  for  his  debts.2 

§  504.  Words  of  limitations  in  trusts. — Unlike  legal 
estates  at  common  law,  in  the  limitation  of  trusts,  the  same 
technical  words  are  not  required  to  be  used.  A  trust  in  fee 
may  be  created  without  using  the  word  heirs,  if  the  intention 
of  the  grantor  is  manifested  in  any  other  way.     And  such 

1  Nichols  v.  Levy,  5  Wall.  433 ;  Nichols  v.  Eaton,  91  U.  S.  716 ;  Keyser  v. 
Mitchell,  67  Pa.  St.  473  ;  Norris  v.  Johnstone,  6  Pa.  St,  287 ;  Rife  v.  Gever.  59 
Pa.  St.  393;  Leavitt  v.  Beirne,  21  Conn.  1,  8;  Bramhall  v.  Ferris,  14  N.  Y. 
41 ;  Markham  v.  Guerront,  4  Leigh,  279 ;  Hallett  v.  Thompson,  6  Paige,  583 ; 
Johnston  v.  Zane's  Trustees,  11  Gratt.  552 ;  Hill  v.  McRae,  27  Ala.  175 ;  Pope's 
Ex'ors  v.  Elliott,  8  B.  Mon.  56;  Easterly  v.  Kenny,  36  Conn.  18;  Dick  v. 
Pitchford,  1  Dev.  &  B.  Eq.  480;  Mcllvaine  v.  Smith,  42  Mo.  45;  Ashhurst 
v.  Givens,  5  Watts  &  S.  323 ;  Eyris  v.  Hetrick,  1  Harris,  491 ;  Barnett's  Ap- 
peal, 10  Wright,  399-402;  Shankland's  Appeal,  11  Wright,  113;  Rowan's 
Creditors  v.  Rowan's  Heirs,  2  Duv.  412 ;  Frazier  v.  Barnum,  4  C.  E.  Green, 
316 ;  Shryock  v.  Waggoner,  4  Casey,  430 ;  Fisher  v.  Taylor,  2  Rawle,  33. 

2  Lester  v.  Garland,  5  Sim.  205 ;  Phipps  v.  Lord  Ennismore,  4  Russ.  131 ; 
Mackasoti's  Appeal,  6  Wright,  330;  Ashhurst's  Appeal,  77  Pa.  St.  464; 
Brooks  v.  Pearson,  27  Beav.  181.  But  see  Markham  v.  Guerant,  4  Leigh- 
279;  Johnston  v.  Zane's  Trustees,  11  Gratt.  552,  and  Hill  v.  McRae,  27  Ala- 
175,  where  trusts  for  the  benefit  of  the  grantor  and  his  wife  or  family  have  bee» 
supported  against  the  claim  of  creditors. 

398 


CH.  XIII.]  TRUSTS.  §    504 

intention  will  be  presumed  if  the  terms  of  the  trust  cannot 
in  any  other  manner  be  satisfied.  This  rule  not  only  refers 
to  the  quantity  or  duration  of  the  equitable  estate  in  the 
cestui  que  trust,  but  if  the  equitable  estate  under  this  con- 
struction is  larger  than  the  legal  estate  in  the  trustee  ac- 
cording  to  the  ordinary  legal  construction,  the  latter  estate 
will  be  enlarged  by  construction  to  meet  all  the  demands  of 
the  trust  estate,  and  the  trustee  will  take  a  fee,  even  though 
the  estate  is  not  limited  to  heirs.1  As  a  corollary  to  the 
above  rule,  it  has  been  well  etablished  that  trustees  will  not 
take  any  larger  legal  estate  than  is  required  for  the  purposes 
of  the  trust.  If,  by  the  express  limitation  of  the  deed,  the 
trustee  has  a  larger  estate,  as,  for  example,  he  has  a  fee, 
and  the  trust  is  only  a  life  estate,  there  is  a  resulting  use  in 
the  remainder  to  the  grantor  and  his  heirs,  which,  under  the 
statute,  will  be  executed,  leaving  in  the  trustee  only  a  legal 
life  estate.2  But  these  are  only  rules  of  construction  by 
which  the  character  and  duration  of  the  legal  and  equitable 

1  Villiers  v.  Villiers,  2  Atk.  71;  Oates  v.  Cooke,  3  Burr.  1684;  Shaw  v. 
Weigh,  2  Stra.  803;  Trent  v.  Hanning,  7  East,  97;  Gibson  v.  Montfort,  1  Ves. 
sr.  485;  Loveacres  v.  Blight,  Cowp.  356;  Doe  v.  Davies,  1  Q.  B.  438;  Stanley 
v.  Colt,  6  Wall.  168;  Neilson  v.  Lagow,  12  How.  98;  Fisher  v.  Fields,  10 
Johns.  505 ;  Gould  v.  Lamb,  11  Mete.  87 ;  Welch  v.  Allen,  21  Wend.  147 ; 
Newhall  v.  Wheeler,  7  Mass.  189 ;  Cleveland  v.  Hallett,  6  Cush.  406 ;  Angell 
v.  Rosenbury,  12  Mich.  266;  Cumberland  v.  Grates,  9  Barb.  595;  Wells  v. 
Heath,  10  Gray,  25;  Att'y-Gen.  v.  Propr's,  etc.,  3  Gray,  48;  Farquharson  v. 
Eichelberger,  15  Md.  73  ;  Deering  v.  Adams,  37  Me.  264 ;  Pearce  v.  Savage.  45 
Me.  90.  Words  of  limitation  are  not  now  required,  in  a  number  of  the  States, 
in  order  to  create  an  estate  in  fee.  The  above  statement  applies  only  to  those 
States  where  the  common-law  rule,  in  respect  to  words  of  limitation,  still  pre- 
vails. 

2  Doe  v.  Davies,  1  Q.  B.  438 ;  Doe  v.  Barthrop,  5  Taunt.  382 ;  Barker  v. 
Greenwood,  4  M.  &  W.  421 ;  Doe  v.  Timins,  1  B.  &  Aid.  547  ;  Doe  v.  Nichols, 
1  B.  &  C.  336 ;  Doe  v.  Ewart,  7  A.  &  E.  636 ;  Ward  v.  Amory,  1  Curtis  C.  Ct. 
419 ;  Morton  v.  Barrett,  22  Me.  257 ;  Wells  v.  Heath,  10  Gray,  25 ;  Norton  v. 
Norton,  2  Sandf.  296 ;  Bush's  Appeal,  33  Pa.  St.  85 ;  Cleveland  v.  Hallett,  a 
Cush.  406 ;  Deering  v.  Adams,  37  Me.  264  ;  Pearce  v.  Savage,  45  Me.  90 ;  Ren- 
ziehausen».  Keyser,  48  Pa.  St.  351;  Farquharson  v.  Eichelberger,  15  Md.  73; 
Liptrot  v.  Holmes,  1  Ga.  381. 

399 


§    505  TRUSTS.  [part   II. 

estates  in  the  trust  are  determined  where  the  intention  of 
the  grantor  is  not  clearly  expressed.  If  the  estate  in  the 
trustee  is  expressly  limited  for  life,  the  fact  that  it  is  not 
altogether  sufficient  to  support  the  equitable  estate  will  not 
enable  a  court  of  equity  to  enlarge  it  by  construction.1  And 
so  also  if  the  estate  in  the  trustee  is  larger  than  the  equita- 
ble estate,  but  the  latter  is  uncertain  and  indefinite  in  its 
duration,  there  will  be  no  execution  of  the  resulting  use  in 
the  grantor  until  the  trust  has  terminated,  or  has  been  ren- 
dered certain.  The  uncertainty  of  duration  of  the  trust 
makes  the  resulting  use  contingent.2 

§  505.  Doctrine  of  remainders  applied  to  trusts. — If 

the  future  estate  in  a  trust  is  contingent,  and  is  preceded  by 
a  particular  estate,  the  destruction  of  the  particular  estate 
by  the  act  of  the  first  cestui  que  trust,  or  its  natural  termi- 
nation before  the  happening  of  the  contingency,  does  not 
defeat  the  contingent  trust,  as  it  would  have  done  if  the 
future  estate  had  been  a  legal  contingent  remainder,  or  one 
by  way  of  use.  The  future  estate  in  a  trust  is  altogether 
independent  of  the  prior  estate,  and  need  not  necessarily 
take  effect  immediately  upon  the  termination  of  the  latter.3 
But  the  rule  in  Shelley's  Case,  which  has  already  been  ex- 
plained, applies  generally  to  all  executed  trusts,  so  that 
when  an  estate  is  limited  in  trust  to  A.  for  life  and  remain- 

1  "Waiter  v.  Hutchinson,  1  B.  &  C.  721 ;  Evans  v.  King,  3  Jones  Eq.  387.  It 
is  possible  that  this  strict  rule  would  not  be  observed  generally  in  this  country. 
At  any  rate,  even  an  express  limitation  for  life  to  the  trustees  may  probably 
be  enlarged  into  a  fee  by  construction,  if  the  deed  gave  affirmative  evidence 
of  the  donor's  intention  that  the  trustee  is  to  have  as  large  an  estate  as  the 
nature  of  the  trust  requires. 

2  Doe  v.  E  wart,  7  A.  &  E.  636 ;  Doe  v.  Davies,  1  Q.  B.  437 ;  Doe  v.  Nichols, 
1  B.  &  C.  341;  Bush's  Appeal,  33  Pa.  St.  85;  Morgan  v.  Moore,  3  Gray,  323; 
Selden  v.  Vermilya,  3  Comst  525;  Steacy  v.  Bice,  27  Pa.  St.  75 ;  Liptrot  v. 
Holmes,  1  Ga.  381 ;  Comby  v.  McMichael,  19  Ala.  747 ;  Cumberland  v.  Graves, 
9  Barb.  595. 

3  2  Washb.  on  Keal  Prop.  463 ;  Fearne  Cont.  Bern.  304,  305 ;  1  Spence  Eq. 
Jur.  605;  1  Prest.  Abstr.  146;  Scott  v.  Scarborough,  1  Beav.  168. 

400 


CH.  XIII.]  TRUSTS.  §    506 

der  in  fee  to  his  heirs,  A.  will  be  considered  cestui  que  trust 
in  fee.  But  the  rule  does  not  apply  to  executory  trusts, 
and  wherever  it  is  the  clearly  expressed  intention  of  the 
grantor  that  the  trust  shall  not  vest  in  fee  in  the  first  taker, 
the  rule  will  not  be  enforced,  and  the  heirs  will  take  as  in- 
dependent purchasers.1 

§  506.  How  created  and  assigned. — Like  uses  before 
the  statute,  no  particular  form  of  words  is  necessary  in  the 
creation  and  declaration  of  trusts.  Any  words  which  man- 
ifest the  intention  that  the  person  named  shall  have  the 
beneficial  interest  in  the  estate  will  be  sufficient.2     And  even 

1  Tud.  Ld.  Cas.  503,  504 ;  2  Washb.  on  Real  Prop.  455 ;  1  Spence  Eq.  Jur. 
503 ;  Croxall  v.  Shererd,  5  Wall.  281 ;  Tillinghast  v.  Coggeshall,  7  R.  I.  383 ; 
Berry  v.  Williamson,  11  B.  Mon.  245;  Gill  v.  Logan,  11  B.  Mon.  231;  Wil- 
liams on  Real  Prop.  285.  But  the  rule  in  Shelley's  Case  has  been  abolished  in 
a  large  number  of  the  States.     See  ante,  sect.  433. 

2  Co.  Lit.  290  b,  note 249,  sect.  14;  1  Spence  Eq.  Jur.  506,  507;  Gomez  v. 
Tradesman's  Bk.,  4  Sandf.  102 ;  Ames  v.  Ashley,  4  Pick.  71 ;  Scituate  v.  Han- 
over, 16  Pick.  222 ;  Cleveland  v.  Hallett,  6  Cush.  403 ;  Montague  v.  Hayes,  10 
Gray,  609;  Orleans  v.  Chatham,  2  Pick.  29;  Fisher  v.  Fields,  10  Johns.  495; 
Wright  v.  Douglass,  7  N.  T.  564 ;  Raybold  v.  Raybold,  20  Pa.  St.  308 ;  Barron 
v.Barron,  24  Vt.  375;  Ready  v.  Kearsley,  14  Mich.  226;  Pratt  v.  Ayer,  3 
Chand.  265;  Norman  v.  Burnett,  25  Miss.  183;  White  v.  Fitzgerald,  19  Wis. 
480;  Cockerill  v.  Armstrong,  31  Ark.  580;  Zaver  v.  Lyons,  40  Iowa,  510; 
Smithy. Ford,  48  Wis.  115;  Hill  v.  Den,  54  Cal.  6;  Richardson  v.  Inglesby, 
13  Rich.  Eq.  59;  Lyle  v.  Burke,  40  Mich.  499;  Morrison  v.  Kinstra,  55  Miss. 
71 ;  Kitchen  v.  Bedford,  13  Wall.  413 ;  Gadsden  v.  Whaley,  14  S.  C.  210;  Har- 
ris' Ex'ors  v.  Barnett,  3  Gratt.  339;  Barkley  v.  Lane's  Ex'ors,  6  Bush,  587; 
Russell  v.  Switzer,  63  Ga.  711;  Wallace  v.  Wainwright,  87  Pa.  St.  263;  Por- 
ter v.  Bk.  of  Rutland,  19  Vt.  410;  Tobias  v.  Ketchum,  32  N.  Y.  319;  Selden's 
Appeal,  31  Conn.  548>  McElroy  v.  McElroy,  113  Mass.  509;  Wheeler  v.  Smith, 
9  How.  55 ;  Slocum  v.  Marshall,  2  Wash.  C.  Ct.  397 ;  Smith  v.  Bowen,  35  N. 
Y.83;  Taft».  Taft.  130  Mass.  461;  Toms  v.  Williams,  41  Mich.  552;  Whit- 
comb  v.  Curdell,  45  Vt.  24.  The  words  used  not  only  must  show  clearly  an 
intention  to  create  a  trust,  but  they  must  themselves  create  the  trust,  as  verba 
de  prcesenti.  A  promise  to  create  a  trust,  if  voluntary,  will  not  raise  a  trust, 
either  express  or  implied,  while  such  a  promise,  for  a  valuable  consideration, 
would  raise  an  implied  trust,  which  would  be  enforced  by  a  court  of  equity. 
Young  v.  Young,  80  N.  Y.  422;  Dellinger's  Appeal,  71  Pa.  St.  425;  Hays  v. 
Quay,  68  Pa.  St.  263;  Martin  v.  Funk,  75  N.  Y.  134;  Stone  v.  Hackett,  12 
Gray,  227;  Huston  v.  Markley,  49  Iowa,  162;  Otis  v.  Beckwith,  49  111.   121; 

26  401 


§    506  TRUSTS.  [part   II. 

words,  wnich  in  their  ordinary  acceptation  are  precatory  in- 
stead of  being  mandatory,  when  used  by  a  testator  in  re- 
spect to  the  estate  devised,  will  be  sufficient  to  raise  a  trust, 
if  from  the  whole  will  a  clear  intention  to  create  a  trust 
may  be  gathered.  Thus,  the  words  entreat,  desire,  hope, 
recommend,  etc.,  have  been  held  to  declare  a  trust.  But 
there  must  be  no  doubt  or  uncertainty  as  to  the  person  who 
is  to  be  benefited,  or  as  to  the  property  to  be  subjected  to 
the  trust,  and  the  intention  of  the  testator  must  be  fully 
established  by  a  fair  construction  of  the  will.1  The  decla- 
ration must,  and  can  only,  be  made  by  the  owner  of  the 
legal  estate. ;  but  for  the  creation  of  the  trust  it  is  not  nec- 
essary to  transfer  the  legal  estate  to  a  third  person  as  trus- 
tee. A  simple  declaration  by  the  owner  of  the  land  that  he 
holds  it  in  trust  for  another,  will  transfer  the  beneficial  in- 
terest to  the  latter,  and  convert  the  legal  owner  into  a  trus- 
tee, provided  the  requisite  consideration  is  present  in  the 
grant.2     And  it  is  not  even  necessary  that  the  declaration 


Olney  v.  Howe,  89  111.  556 ;  Andrews  v.  Hobson,  23  Ala.  219 ;  Wyble  v.  Mc- 
Pheters,  52  Ind.  393 ;  Lane  v.  Ewing,  31  Mo.  75 ;  Estate  of  Webb,  49  Cal.  541 ; 
Henderson  v.  Henderson,  21  Mo.  379;  Neves  v.  Scott,  9  How.  196;  Blancb- 
ard  v.  Sheldon,  43  Vt.  512;  Minor  v.  Rogers,  40  Conn.  512;  Adams  v.  Adams, 
21  Wall.  185;  Taylor  v.  Henry,  48  Md.  550;  Ownes  v.  Ownes,  23  N.  J.  Eq.60; 
McNulty  v.  Cooper.  3  Gill.  &  J.  214;  Davis  v.  Ney,  125  Mass.  590. 

1  Pennock's  Estate,  20  Pa.  St.  274-280 ;  Erickson  v.  Willard,  1  N.  H.  217 ; 
Harper  v.  Phelps,  21  Conn.  257;  Foose  v.  Whitmore,  82  N.  Y.  405;  Dresser 
v.  Dresser,  46  Me.  48;  Araee  v.  Johnson,  35  Vt.  173;  Spooner  v.  Lovejoy,  108 
Mass.  529;  Parsley's  Appeal,  70  Pa.  St.  153;  Van  Duyne  v.  Van  Duyne,  1 
McCart.  397 ;  Williams  v.  Worthington,  49  Md.  572 ;  Harrison  v.  Harrison's 
Adm'x,  2  Gratt.  1 ;  Cook  v.  Ellington,  6  Jones  Eq.  371 ;  Tolson  v.  Tolson,  10 
Gill  &  J.  159 ;  Young  v.  Young,  69  N.  C.  309 ;  Lesesne  v.  Witte,  5  S.  C.  450 ; 
Ingraham  v.  Fraley,  29  Ga.  553 ;  Lines  v.  Darden,  5  Fla.  51 ;  Cockrill  -?.  Arm- 
strong, 31  Ark.  580;  McKee's  Adm'rs  v.  Means,  34  Ala.  349;  Collins  v.  Car- 
lisle, 7  B.  Mon.  13 ;  Lucas  v.  Lockhardt,  10  Smed.  &  M.  466 ;  Harding  v. 
Glyn,  1  Atk.  469 ;  2  Eq.  Ld.  Cas.  1833-1848,  1857-1866.  See  also  2  Pom.  Eq. 
Jur.,  sects.  1014-1017. 

2  1  Spence  Eq.  Jur.  507 ;  Crop  v.  Norton,  2  Atk.  76 ;  Suarez  t>.  Pumpelly, 
2  Sandf.  Ch.  336  ;  Morrison  v.  Beirer,  2  Watts  &  S.  81 ;  Uraun  v.  Coates,  109 
Mass.  681  ;  Young  v.  Young,  80  N.  Y.  422;  Tannery.  Skinner,  11  Bush,  120; 

402 


CH.  XIII.]  TEUSTS.  §    507 

should  be  made  to  the  proposed  cestui  que  trust.  It  may  be 
made  without  his  knowledge  and  yet  be  good,  if  he  accepts 
it  within  a  reasonable  time  after  he  has  heard  of  its  exist- 
ence.1 

§  507.  Statute  of  Frauds. — Before  the  Statute  of 
Frauds  a  trust  could  be  created  or  transferred  by  an 
oral  declaration.  No  writing  was  necessary  for  its  valid 
creation.  But  the  Statute  of  Frauds  requires  that  all 
declarations  or  creations  of  trusts  should  be  manifested  and 
proved  by  some  instrument  in  writing  signed  by  the  party 
creating  the  trust.  But  the  statute  necessarily  does  not 
apply  to  implied,  resulting  and  constructive  trusts,  and  the 
original  English  statute  expressly  excepted  them  from  its 
operation.  These  trusts  may,  therefore,  be  proved  by  parol 
evidence.2  The  statute,  however,  covers  all  express  trusts, 
and  these  must  invariably  be  proved  by  some  writing.3     But 

Taylor  v.  Henry,  48  Md.  550;  Kay  v.  Simmons,  11  R.  I.  266;  Minor  i\  Rodgers, 
40  Conn.  512;  Gadsden  v.  Whaley,  14  S.  C.  210;  Boykin  v.  Pace's  Ex'or,  64 
Ala.  68;  Hill  v.  Den,  54  Cal.  6  ;  Baldwin  v.  Humphrey,  44  N.  H.  609;  Bondt). 
Bunting,  78  Pa.  St.  210.  But  see  Scales  v.  Maude,  6  De  G.  M.  &  G.  43 ;  War- 
riner  v.  Rogers,  L.  R.  16  Eq.  340. 

1  Barrell  v.  Joy,  16  Mass.  221 ;  Ward  v.  Lewis,  4  Pick.  521 ;  Beyant  v.  Rus- 
sell, 23  Pick.  508;  Berly  v.  Taylor,  5  Hill,  677;  Shepherd  v.  McEvers,  4 
Johns.  Ch.  130;  Scull  v.  Reeves,  2  Green  Ch.  84;  Skipwith's  Ex'ors  v.  Cun- 
ningham, 8  Leigh,  271. 

1  2  Washb.  on  Real  Prop.  445,  446,  447 ;  1  Spence  Eq.  Jur.  497,  512.  See 
ante,  sects.  497-501. 

3  Hall  v.  Young,  37  N.  H.  134 ;  Bartlett  v.  Bartlett,  14  Gray,  278 ;  Lloyd  v. 
Lynch,  28  Pa.  St.  419;  Bragg  v.  Paulk,  42  Me.  502;  Moore  v.  Moore,  38  N.  H. 
382;  Pinneyv.  Fellows,  15  Vt.  525;  Sturtevant  v.  Sturtevant,  20  N.  Y.  39; 
Flagg  v.  Mann,  2  Sumn.  486;  Hearst  v.  Pujol,  44  Cal.  230;  Ratliff  v.  Ellis,  2 
Iowa,  59;  Movan  v.  Hays,  1  Johns.  Ch.  339;  Lynch  v.  Clements,  24  N.  J.  Eq. 
431;  Patton  v.  Beecher,  62  Ala.  579;  Wood  v.  Cox,  2  My.  &  Cr.  684;  Cor- 
nelius v.  Smith,  55  Mo.  528;  Ambrose  v.  Otty,  1  P.  Wms.  322;  Johnson  v. 
Ronald,  4  Munf.  77.  See  Shelton  v.  Shelton,  5  Jones  Eq.  292 ;  Dean  u.'Dean, 
6  Conn.  285;  Osterman  v.  Baldwin,  6  Wall.  116;  Bates  v.  Hurd,  65  Me.  180; 
Homer  p.  Ilom^r,  107  Mass.  82;  Faxon  v.  Folvey,  110  Mass.  392;  Fordyce  v. 
Willis,  3  Hro.  Ch.  577;  Wallace  v.  Wainwright,  87  Pa.  St.  263;  Berrien  v. 
Berrien,  3  Green  Ch.  37;  McCubbin  v.  Cromwell,  7  Gill  &  J.  164;  Barnes  v. 

403 


§    507  TEUSTS.  [part  II. 

it  is  not  required  that  the  trust  shall  be  created  by  some  in- 
strument in  writing.  The  writing  is  only  necessary  for  its 
proof.  Therefore  the  writing  need  not  have  been  made  for 
the  purpose  of  creating  or  declaring  a  trust;  it  can  act  by 
way  of  an  admission,  as  evidence  of  an  existing  trust.1  The 
statute  only  requires  the  writing  to  show  that  there  is  a 
trust,  and  to  give  its  limitations.  If  the  writing  is  but  an 
imperfect  presentation  of  the  trust  and  the  terms  there  stated 
are  uncertain,  the  "'rust  will  not  be  enforced.  Parol  evi- 
dence is  not  admissible  to  supply  what  has  been  omitted.2 
Letters,  indorsements  on  envelopes,  acknowledgments  and 
admissions  in  equity  pleadings  have  been  held  sufficient 
writing  for  the  proof  of  a  trust.3 

Taylor,  27  N.  J.  Eq.  259 ;  Packard  v.  Putnam,  57  N.  H.  43 ;  De  Laurengel  v. 
De  Boom,  48  Cal.  581 ;  Reid  v.  Reid,  12  Rich.  Eq.  213 ;  Kingsbury  v.  Burnside, 
58  111.  310;  Gibson  v.  Foote,  40  Miss.  788;  Brown  v.  Brown,  12  Md.  87. 

1  1  Cruise  Dig.  390;  Forster  v.  Vale,  3  Ves.  707;  Ambrose  v.  Ambrose,  1 
P.  Wms.  322 ;  Davies  v.  Otty,  33  Beav.  540;  Steere  v.  Steere,  5  Johns.  Ch.  1 ; 
Jackson  v.  Moore,  6  Cow.  706;  McClellan  v.  McClellan,  65  Me.  500;  Movan 
v.  Hays,  1  Johns.  Ch.  339;  Unitarian  Soc.  v.  Woodbury,  14  Me.  281  ;  Orleans 
v.  Chatham,  2  Pick.  29 ;  Barrell  v.  Joy,  10  Mass.  221 ;  Pinney  v.  Fellows,  15 
Vt.  525 ;  Flagg  v.  Mann,  2  Sumn.  486 ;  Brown  v.  Brown,  1  Strobh.  Eq.  363 ; 
Brown  v.  Combs,  5  Dutch,  36 ;  Cornelius  v.  Smith,  55  Mo.  528 ;  Trapnall  v. 
Brown,  19  Ark.  48. 

2  Forster  v.  Vale,  3  Ves.  707 ;  Wright  v.  Wright,  1  Ves.  sr.  409 ;  Brydges 
v.  Brydges,  3  Ves.  120 ;  Steere  v.  Steere,  5  Johns.  Ch.  1 ;  Parkhurst  v.  Van 
Courtlandt,  1  Johns.  Ch.  273 ;  Abeel  v.  Radcliffe,  13  Johns.  297 ;  Walker  v. 
Locke,  5  Cush.  90;  Chadwick  v.  Perkins,  3  Me.  399;  Patton  v.  Beecher,  62 
Ala.  579;  Russell  v  Switzer,  63  Ga.  711;  Wheeler  v.  Smith,  9  How.  55;  2 
Pom.  Eq.  Jur.,  sect.  1009. 

3  Forster  v.  Vale,  3  Ves.  696;  Smith  v.  Matthews,  3  De  G.  F.  &  J.  139; 
Wright  v.  Douglass,  7  N.  Y.  564 ;  Montague  v.  Hayes,  10  Gray,  609 ;  Pratt  v. 
Ayer,  3  Chand.  265 ;  Fisher  v.  Fields,  10  Johns.  495 ;  Barrell  v.  Joy,  16  Mass. 
221;  Barron  v.  Barron,  24  Vt.  375;  Hutchinson  v.  Tindall,  2  Green  Ch.  357; 
Union  Mut.  Ins.  Co.  v.  Campbell,  95  111.  267 ;  De  Laurencel  v.  De  Boom,  48 
Cal.  581;  Moore  v.  Pickett,  62  111.  158;  McLamie  v.  Portlow,  63  111.  340; 
Kingsbury  v.  Burnside,  58  III,  310;  McClellan  v.  McClellan,  65  Me.  500;  Bates 
v.  Hurd,  65  Me.  180;  Packard  v.  Putnam,  57  N.  H.  43;  Baldwin  v.  Humphrey, 
44  N.  Y.  609;  Ivory  v.  Burns,  56  Pa.  St.  300;  Johnson  v.  Delaney,  35  Texas, 
42;  Cozine  v.  Graham,  2  Paige,  177;  Patton  v.  Chamberlain,  44  Mich.  5; 
Broadrup  v.  Woodman,  27  Ohio  St.  553. 

404 


CH.  XIII.]  TRUSTS.  §    509 

§  508.  How  affected  by  want  of  a  trustee.  —  The  trust 
is  never  allowed  to  fail  because  there  is  no  trustee  to  hold 
the  legal  estate.  And  it  matters  not  from  what  cause  the 
failure  of  the  trustee  may  arise,  equity  follows  the  land  into 
whosesoever  hands  it  may  fall,  and  compels  them  to  hold 
the  legal  estate  subject  to  the  trust.  The  court  will  either 
compel  the  owner  of  the  legal  estate  to  perform  the  trust, 
or  it  will  appoint  another  to  act  as  trustee,  and  direct  a 
conveyance  to  him.1 

§  509 .  Removal  of  trustees.  —  The  court  of  equity  has 
the  general  power  to  appoint  new  trustees  whenever  the  in- 
terests of  the  cestui  que  trust  demand  such  appointment. 
If  the  trustee  leaves  the  State,  loses  his  mind,  becomes  in- 
solvent, or  does  anything  else  which  makes  it  prejudicial  to 
the  cestui  que  trust  for  him  to  remain  in  charge  of  the  trust, 
the  court  may  remove  him  and  appoint  another  in  his  stead.2 
And  although  at  common  law  the  legal  estate  in  trust,  upon 
the  death  of  the  trustee,  descended  to  his  heirs  to  be  admin- 
istered by  them,  and  this  is  still  the  general  rule,  yet  if  it 
would  be  beneficial  to  the  estate  that  a  new  trustee  be  ap- 

'  Co.  Lit.  290  b,  note  249,  sect.  4;  1  Cruise  Dig.  403,  460;  Wilson  v. 
Towle,  36  N.  H.  129 ;  Taintor  v.  Clark,  5  Allen,  66  ;  King?;.  Donnelly,  5  Paige, 
46;  Shepherd  v.  McEvars,  4  Johns.  Ch.  136;  Stone  v.  Griffin,  3  Vt.  400;  Mc- 
Girr  v.  Aaron,  1  Penn.  49 ;  Gibbs  v.  Marsh,  2  Mete.  243 ;  Adams  v.  Adams, 
21  Wall.  185;  Peter  v.  Beverley,  10  Pet.  532;  Burrill  v.  Shield,  2  Barb.  457; 
Crocheron  v.  Jaques,  3  Edw.  Ch.  207 ;  Druid  Park,  etc.,  Co.  v.  Dettinger,  53 
Md.  46;  Cloud  a.  Calhoun,  10  Rich.  Eq.  358;  Mills  v.  Haines,  3  Head,  335; 
Furman  v.  Fisher,  4  Caldw.  626;  Miller  v.  Chittenden,  2  Iowa,  315;  White  v. 
Hampton,  10  Iowa,  244;  s.  c,  13  Iowa,  261;  Griffith's  Adm'r  v.  Griffith,  5  B. 
Mon.  113;  Harris  v.  Rucker,  13  B.  Mon.  564. 

2  2  Washb.  on  Real  Prop.  475;  Suarez  v.  Pumpelly,  2  Sandf.  Ch.  337; 
People  v.  Norton,  9N.  Y.  176;  Bowditch  v.  Banuelos,  1  Gray,  220;  Farmers' 
Loan,  etc.,  Co.  v.  Hughes,  18  N.  Y.  130;  Sparhawk  v.  Sparhawk,  114  Mass. 
356;  Scott  v.  Rand,  118  Mass.  215;  Shepherd  v.  McEvers,  4  Johns.  Ch.  136; 
Bloomer's  Appeal,  83  Pa.  St.  45;  McPherson  v.  Cox,  96  U.  S.  404  ;  Ketchum 
v.  Mobile,  etc.,  R.  R.,  2  Woods,  532;  Bailey  v.  Bailey,  2  Del.  Ch.  95;  Satter- 
field  v.  John,  53  Ala.  121 ;  No.  Ca.  R.  R.  v.  Wilson,  81  N.  C.  223 ;  Preston  v 
Wilcox,  38  Mich.  578 ;  Green  v.  Blackwell,  31  N.  J.  Eq.  37 ;  Collier  v.  Blake, 
14  Kan.  250. 

405 


§    510  TRUSTS.  [PART   II. 

pointed,  the  court  may  do  so.1  By  recent  statutes  in  Eng- 
land, and  in  some  of  the  States,  the  appointment  of  a  new 
trustee  is  made  to  operate  upon  the  legal  title,  and  pass  it 
to  him  from  the  former  trustee.2  But  where  there  is  no 
statute  of  that  kind  the  appointment  does  not  effect  a  trans- 
fer of  the  legal  estate.  A  court  of  equity,  in  making  the 
appointment,  at  the  same  time  decrees  a  conveyance  to  the 
new  trustee,  and  will  punish  for  contempt  of  court  if  the 
holder  of  the  legal  title  refuses.3 

§  510.  Refusal  of  trustee  to  serve.  —  No  one,  by  the  un- 
authorized appointment  of  another,  can  be  compelled  to  act  as 
trustee.  To  make  the  performance  of  the  trust  obligatory, 
he  must  accept  the  trust  expressly,  or  so  interfere  with  the 
trust  property  as  to  raise  the  presumption  that  he  has  ac- 
cepted.4    But  when  he  has  accepted  it  expressly  or  impliedly, 

-  2  Washb.  on  Real  Prop.  476,  477 ;  5  Kent's  Com.  311 ;  Lewin  on  Tr.  303 : 
Boone  t>.  Childe,  10  Pet.  213;  Berrien  v.  McLane,  Hoffm.  Ch.  420;  Clark  v. 
Taintor,  7  Cush.  567;  Warden  v.  Richards,  11  Gray,  277;  Evans  v.  Chew,  71 
Pa.  St.  47;  Gray  v.  Henderson,  71  Pa.  St.  368;  Dunning  v.  Ocean  Nat.  Bk„ 
6Lans.  396;  Russell  v.  Peyton,  4  111.  App.  473.  In  New  York,  by  statute, 
the  trust  is  made  to  vest  in  the  Supreme  Court,  instead  of  descending  to  the 
heirs  of  the  deceased  trustee.  1  R.  S.  N.  Y.  730,  sect.  68.  See  Ross  v.  Rob- 
erts, 2  Hun;  90;  Clark  v.  Crego,  51  N.  Y.  647.  Such  seems  also  to  be  the  stat- 
utory rule  in  Michigan  and  Wisconsin  ;  2  Washb.  on  Real  Prop.  476.  If  the 
trustee  devises  his  trust-estate,  as  he  may  do,  if  not  prohibited  by  statute,  his 
devisee  takes  the  place  of  his  heir,  and  may  perform  the  trust.  Marlow  v. 
Smith,  2  P.  Wms.  198;  Titley  v.  Wolstenholme,  7  Beav.  425. 

2  Stat.  15,  16  Vict.,  ch.  65,  sect.  1;  Mass.  Gen.  Stat,  ch.  100.  sect.  9;  Par- 
ker v.  Converse,  5  Gray,  336;  McNish  v.  Guerard,  4  Strobh.  Eq.  66;  1  Rev. 
Stat.  Mo.  (1879),  p.  672^  sect.  3930;  R-v.  Stat.  Conn.  Tit.  12,  sect.  22;  Taylor 
v.  Boyd,  3  Ohio,  337;  Bennett  v.  Williams,  5  Ohio,  461;  King  v.  Beli,  28 
Conn.  598. 

*  O'Keefev.  Calthorpe,  1  Atk.  17;  Ex  parte  Greenhouse,  1  Madd.  109; 
Berrier  v.  McLane,  Hnti'm.  Ch.  420;  Webster  v.  Yandeventer,  6  Gray.  428; 
Wallace  v.  Wilson,  34  Miss.  357 ;  Shepherd  v.  Ross  Co.,  7  Ohio,  271 ;  Young 
v.  Young,  4  Cranch,  499. 

4  Baldwin   v.    Porter,   12   Conn.  473;    Scull  v.  Reeves,  2  Green  Ch.  4; 
Shepherd  v.  McEvers,  4  Johns.  Ch.  136 ;  Lewis  v.  Baird,  3  McLean,  58 ;  Eyricb 
v.  Hetrick,  13  Pa.  St.  488;  Cloud  v.  Calhoun,  10  Rich.  Eq.  358;  Flint  v.  Clin- 
406 


CH.  XIII.]  TRUSTS.  §    511 

he  cannot  of  his  own  motion  abandon  it,  or  refuse  to  per- 
form the  duties.  The  court  may,  in  the  exercise  of  its  dis- 
cretion, relieve  him  from  his  obligation  or  compel  him  to 
serve,  whichever  course  best  subserves  the  interests  of  the 
cestui  que  trust.1  If  the  trustee  named  refuses  to  act  it 
would  have  no  greater  effect  upon  the  validity  of  the  trust 
than  would  his  death,  or  a  failure  to  name  a  trustee  in  the 
deed  creating  the  trust.  Another  trustee  would  be  appointed 
to  take  his  place.  But  the  refusal  must  be  a  positive  dis- 
claimer of  the  trust ;  for  otherwise  the  law  will  presume 
that  the  trust  is  beneficial  to  the  trustee  as  well  as  the  cestui 
que  trust,  and  that  they  both  have  accepted  it.  A  mere  oral 
declination  will  not  prevent  the  declining  trustee  from  sub- 
sequently entering  upon  the  performance  of  the  trust,  if  his 
place  has  not  actually  been  filled  by  the  appointment  of 
another;  and,  as  a  general  rule,  the  court  will  not  make 
such  an  appointment  until  the  trustee  has  made  a  more  for- 
mal disclaimer.2 

§  511.  Survivorship.  — If  there  are  more  than  one  trus- 
tee they  take  and  hold  the  legal  estate  in  joint-tenancy. 
If,  therefore,  one  of  them  dies,  the  estate  vests  in  the  sur- 

ton  Co.,  12  N.  H.  430;  Goss  v.  Singleton,  2  Head,  67;  Lyle  v.  Burke,  40  Mich. 
499;  White  v.  Hampton,  13  Iowa,  259;  Hearst  v.  Pojol,  44  Cal.  230;  Adams 
e.  Adams,  21  Wall.  185 ;  Armstrong  v.  Morrill,  14  Wall.  120 ;  Montford  v. 
Cadogan,  17  Ves.  485 ;  Urch  v.  Walker,  3  My.  &  Cr.  702. 

1  Shepherd  v.  McEvers,  4  Johns.  Ch.  136;  Tainter  v.  Clark,  5  Allen,  66; 
Cruger  v.  Halliday,  11  Paige,  319;  Bowditch  v.  Banuelos,  1  Gray,  220;  Gil- 
chirst  v.  Stevenson,  9  Barb.  9;  People  v.  Norton,  9  N.  Y.  176;  Drane  v.  Gun- 
ter,  19  Ala.  731 ;  Deefendorf  v.  Speaker,  16  N.  Y.  246 ;  In  re  Bernstein,  3 
Redf.  20;  Wilkinson  v.  Parry,  4  Russ.  272;  Greenwood  v.  Wakeford,  1  Beav. 
676;  Forshaw  v.  Higginson,  20  Beav.  485. 

2  Tainter  v.  Clarke,  13  Mete.  220;  Judson  v.  Gibbons,  5  Wend.  224;  Goss 
v.  Singleton,  2  Head,  77;  McCosker  v.  Brady,  1  Barb.  Ch.  329;  White  v. 
Hampton,  13  Iowa,  259;  Cloud  v.  Calhoun,  10  Rich.  Eq.  358;  Adams  v. 
Adams,  21  Wall.  185;  Flint*.  Clinton  Co.,  12  N.  H.  430;  Eyrick  v.  Hetrick, 
13  Pa.  St.  488;  Lyle  v.  Burke,  40  Mich.  499;  King  v.  Donnelly,  5  Paige,  46; 
Putnam's  Free  School  v.  Fisher,  30  Me.  526 ;  Jones  v.  Moffett,  5  Serg.  &  R. 
623. 

407 


§    512  TRUSTS.  [part   II. 

vivors  to  the  exclusion  of  the  heirs  of  the  deceased  trustee, 
and  they  are  generally  competent  to  administer  the  trust. 
This  rule  is  without  limitation  when  applied  to  executed 
trusts,  but  whether  an  executory  trust  survives  depends 
upon  the  amount  of  personal  confidence  reposed  in  them 
all  as  one  body.1  If  the  special  powers  in  an  executory 
trust  are  granted  to  the  trustees  ratione  officii,  i.e.,  given  in 
general  terms  to  "  my  trustees,"  the  ordinary  construction 
is  that  such  trust  powers  survive.2  But  if  they  are  granted 
to  them  nominatim,  indicating  a  personal  confidence  in  the 
discretion  of  each,  there  will  be  no  survivorship.3  The 
same  rule  governs  the  right  to  exercise  trust  powers  of  the 
new  trustee  appointed  by  the  court.  Ordinary  trust  powers 
may  be  exercised  by  him,  but  those  involving  a  personal 
confidence  die  with  the  removal  of  the  trustee,  in  whom  the 
confidence  was  reposed.4 

§  T)12.  Merger  of  interests.  —  If  the  legal  and  equitable 
estates  of  a  trust  become  lawfully  united  in  one  person,  the 
equitable  is  merged  in  the  legal  estate,  in  accordance  with 
the  general  law  of  merger.     But  the  conjunction  of  the  two 

1  Lane  v.  Debenham,  11  Hare,  188;  Cole  v.  Wade,  16  Ves.  28;  Warburton 
v.  Sands,  14  Sim.  622;  Franklin  v.  Osgood,  14  Johns.  553;  Peter  v. 
Beverly,  10  Pet.  564;  Jackson  v.  Schauber,  7  Cow.  194;  Stewart  v.  Pettus,  10 
Mo.  755;  Burrill  v.  Shield,  2  Barb.  457;  Saunders  v.  Schmaelzle,  49  Cal.  59. 
In  New  York,  if  one  of  two  or  more  trustees  resign,  the  others  have  not  the 
power  to  execute  the  trust,  in  the  same  manner  as  if  he  were  dead.  Another 
trustee  must  be  appointed  in  his  place.  Van  Wick's  Petition,  1  Barb.  Ch» 
570. 

2  Peter  v.  Beverly,  10  Pet.  564 ;  Jackson  v.  Given,  16  Johns.  167 ;  Tainter 
v.  Clarke,  13  Mete.  220;  Zebach  v.  Smith,  3  Binn.  69;  Gray  v.  Lynch,  8  Gill, 
403;  Bloomer  v.  Waldin,  3  Hill,  365;  Bergen  v.  Duff,  4  Johns.  Ch.  308; 
Franklin  v.  Osgood,  14  Johns.  553;  Co.  Lit.  113  a;  note,  146;  Story's  Eq. 
Jur.,  sect.  1062 ;  Cole  v.  Wade,  16  Ves.  28 ;  Wells  v.  Lewis,  4  Mete.  (Ky.> 
271 ;  Lewin  on  Tr.  239. 

3  See  preceding  note,  and  post,  sect.  566. 

4  Cole  v.  Wade,  16  Ves.  44;  Hibbard  v.  Lamb,  Ambl.  309.  Doyley  v. 
Att'y  Gen.,  2  Eq.  Cas.  Abr.  195;  Burrill  v.  Shield,  2  Barb. 457;  Lewin  on  Tr. 
239. 

408 


CH.  XIII.]  TRUSTS.  §    513 

estates  in  one  person  will  not  produce  a  merger,  if  it  would 
be  prejudicial  to  the  rights  of  any  one  lawfully  interested 
in  the  trust  property.  As  a  general  rule  it  is  necessary 
that  the  equitable  estate  should  be  of  equal  extent  with  the 
legal  estate,  so  that  a  merger  might  take  place.1 

§  513.  Rights  and  powers  of  trustees. — Their  rights 
and  powers  must  necessarily  vary  materially  with  the  char- 
acter and  terms  of  the  trust.  So  also  do  the  rights  and 
powers  of  the  cestui  que  trust.  The  authority  of  the  former 
is  greatest  and  the  powers  of  the  latter  are  least  in  the  case 
of  executory  trusts,  while  the  converse  is  true  of  passive 
trusts.  The  powers,  that  either  may  have  in  active  trusts 
and  which  are  peculiar  to  such  trusts,  are  wholly  dependent 
upon  the  particular  provisions  of  each  trust,  and  no  general 
rules  can  be  laid  down  in  explanation  of  them.  It  may  be 
said  of  every  species  of  trusts  that  possessory  actions,  and 
actions  for  the  protection  of  the  legal  estate,  must  be  brought 
by  the  trustee.  The  cestui  que  trust  cannot  maintain  them. 
In  a  court  of  law  the  trustee  is  deemed  to  be  entitled  to  the 
possession  of  the  land,  and  may  even  oust  the  cestui  que 
trust  from  possession.  The  latter,  if  in  possession,  holds 
it  merely  as  a  tenant  at  sufferance  or  at  will.2     Where  there 

1  3  Prest.  Conv.  1  Spence  Eq.  Jur.  508,  572;  Nicholson  v.  Halsey,  7 
Johns.  Cb.  422 ;  Rogers  v.  Rogers,  18  Hun,  409 ;  Gardner  v.  Gardner,  3  Johns. 
Ch.  53;  Hopkinson  v.  Dumas,  42  N.  H.  307  ;  Bolles  v.  State  Trust  Co.,  27  N. 
J.  Eq.  308;  Cooper  v.  Cooper,  1  Halst.  Ch.  9;  James  v.  Morey,  2  Cow.  284; 
Donalds  v.  Plumb,  8  Conn.  453  ;  Mason  v.  Mason,  2  Sandf.  Ch.  432  ;  Healy  «. 
Alstoon,  25  Miss.  190;  Badgett  v.  Keating,  31  Ark.  400;  Hunt  v.  Hunt,  14 
Pick.  374 ;  Downes  v.  Grazebrook,  3  Meriv.  208 ;  Brydges  v.  Brydges,  3  Ves. 
126 ;  Selby  v.  Alston.  3  Vee.  339 ;  Wade  v.  Paget,  1  Bev.  Ch.  363 ;  Butler  v. 
Godley,  1  Dev.  94. 

2  1  Cruise  Dig.  414;  2  Pom.  Eq.  Jur.,  sect.  991 ;  2  Washb.  on  Real  Prop. 
483 ;  Russell  v.  Lewis,  2  Pick.  608 ;  Woodman  v.  Good,  6  Watts  &  S.  169 ; 
Newton  v.  McLean,  41  Barb.  289 ;  Trustees,  etc.,  v.  Stewart,  27  Barb.  553 ; 
Jackson  v.  Van  Slick,  8  Johns.  487 ;  Beach  v.  Beach,  14  Vt.  28 ;  Mordecai  u. 
Parker,  3  Dev.  425;  Hepburne  v.  Hepburne,  2  Bradf.  74;  William's  Appeal, 
83  Pa.  St.  377;  Freeman  v.  Cooke,  6  Ired.  Eq.  373;  Allen  v.  Imlet,  1  Holt, 

409 


§    513  TRUSTS.  [part  II. 

are  two  or  more  trustees  all  must  join  in  ^*y  formal  act 
under  the  trust,  particularly  if  the  exercise  of  discretion  is 
required,  as  in  the  case  of  a  sale  of  the  trust  property.1  In 
ordinary  informal  proceedings  the  act  of  one  is  deemed  to 
be  the  act  of  all.  But  they  are  not  responsible  for  the  un- 
lawful acts  of  each  other,  unless  they  participate  in  the 
wrongful  acts,  or  are  guilty  of  negligence  in  the  discharge 
of  their  duties,  and  the  wrongful  act  could  have  been  pre- 
vented by  the  exercise  of  ordinary  care.2    Whenever  the 


641 ;  May  v.  Taylor,  6  Man.  &  Gr.  261 ;  White  v.  Albertson,  3  Dev.  241 ;  Aikin 
v.  Smith,  1  Sneed,  304;  Stone  v.  Bishop,  4  Cliff.  593;  Kennedy  v.  Fury, 
1  Dall.  72 ;  Brown  v.  Combs,  5  Dutch.  36 ;  Gunn  v.  Barrow,  17  Ala.  743 ; 
Fitzpatrick  v.  Fitzgerald,  13  Gray,  400.  And  as  the  legal  owner  of  the  land, 
he  is  bound  to  use  all  proper  diligence  in  collecting  rents  and  profits,  and  pay- 
ing off"  all  taxes  and  other  charges  against  the  estate.  Mansfield  v.  Alwood, 
84  111.  497 ;  Hepburne  v.  Hepburne,  2  Bradf.  74. 

1  Cole  v.  Wade,  16  Ves.  28 ;  Townsend  v.  Wilson,  1  B.  &  Aid.  608 ;  Sin- 
clair v.  Jackson  8  Jo  43;  Ridgeley  v.  Johnson,  11  Barb.  527;  Franklin  v. 
Osgood,  14  Johns.  553;  Peter  v.  Beverlej-,  10  Pet.  564;  Latrobe  v.  Tiernan,  2 
Md.  Ch.  474 ;  Wilbur  v.  Almy,  12  How.  180 ;  Taylor  v.  Dickinson,  15  Iowa, 
484;  Story's  Eq.  Jur.,  sect.  1280;  1  Cruise  Dig.  455.  If,  however,  the  trust  is 
a  public  one,  the  rule  does  not  apply.  In  public  trusts,  in  the  absence  of  any 
special  rule  or  by-law,  a  majority  of  the  trustees  are  competent  to  act.  Wil- 
kinson v.  Malin,  2  Tyrwh.  544 ;  Hill  v.  Josselyn,  13  Smed.  &  M.  597 ;  Chambers 
v.  Perry,  17  Ala.  726. 

2  The  trustee  cannot  leave  the  entire  control  of  the  property  in  the  hands 
of  his  co-trustees.  And,  if  in  consequence  of  such  surrender,  which  is  in 
itself  a  clear  neglect  of  duty,  the  co-trustee  has  been  enabled  to  violate  the 
trust,  the  former  will  be  responsible  for  the  wrongful  acts  of  the  latter, 
whether  they  be  acts  of  -commission  or  omission.  Kip  v.  Deniston,  4  Johns. 
23;  Ward  v.  Lewis,  4  Pick.  518;  Banks  v.  Wilkes,  3  Sandf.  Ch.  99;  Towne 
v.  Ammidon,  20  Pick.  535;  Spencer  v.  Spencer,  11  Paige,  299;  Pim  v.  Down- 
ing, 11  Serg.  &  R.  66 ;  Jones'  Appeal,  S  Watts  &  S.  143 ;  Ringgold  v.  Ring- 
gold, 1  Har.  &.  G.  11 ;  Latrobe  v.  Tiernan,  2  Md.  Ch.  474;  Wayman  v.  Jones, 
4  Md.  Ch.  500;  State  v.  Guilford,  15  Ohio,  593 ;  Rayall's  Adm'or  v.  McKenzie, 
25  Ala.  363;  Edmonds  v.  Crenshaw,  14  Pet.  166;  Worth  v.  McAden,  1  Dev. 
&  B.  Eq.  199 ;  Hall  v.  Carter,  8  Ga.  388 ;  Schenck  v.  Schenck,  1  C.  E.  Green, 
174;  Maccubbin  v.  Cromwell's  Ex'rs,  7  Gill  &  J.  157;  Irwin's  Appeal,  35  Pa. 
St.  294 ;  Graham  v.  Davidson,  2  Dev.  &  B.  Eq.  155.  But  if  he  is  not  the  acting 
trustee,  and  merely  joins  in  the  execution  of  the  trust  in  some  particular 
matter  for  the  sake  of  formality,  as  where  he  signs  a  receipt  for  money  paid 
to  the  co-trustee,  he  will  not  be  liable  for  a  misappropriation  by  the  co-trustee. 

410 


CH.  XIII.]  TRUSTS.  514 

trustees  violate  the  rights  of  the  cestui  que  trust,  or  fail  or 
refuse  to  perform  their  duty,  courts  of  equity  are  the  proper 
courts  to  apply  to  for  relief.  And  the  decrees  of  those 
courts  are  paramount  in  all  questions  relating  to  the  powers 
and  duties  of  the  parties  to  a  trust.1 

§  514.  Rights  and  powers  of  cestuis  que  trust.  —  Where 
it  is  a  passive  trust,  the  rights  of  the  cestui  que  trust  are  in 
equity  almost  equivalent  to  legal  ownership.  The  trustee 
has  the  bare  legal  title,  and  may  be  compelled  by  chancery 
to  do  whatever  in  respect  to  the  legal  title  is  necessary  for 
the  beneficial  enjoyment  of  the  property  by  the  cestui  que 
trust.  The  latter  is  entitled  to  the  possession,  can  collect 
the  rents  and  profits  and  apply  them  to  his  use.  But  the 
cestui  que  trust  can  only  acquire  possession  against  the  will 
of  the  trustee  by  means  of  a  decree  in  equity.  A  court  of 
law  would  sustain  an  action  of  ejectment  by  the  trustee.     A 


Brice  v.  Stokes,  11  Ves.  319;  Ingle  v.  Partridge,  32  Beav.  661 ;  Peter  v.  Bev- 
erly, 10  Pet  531;  1  How.  134;  Taylor  v.  Benham,  5  How.  233 ;  Sinclair  v. 
Jackson,  8  Cow.  543.  See  Ormiston  v.  Olcott,  84  N.  Y.  339 ;  Brice  v.  Stokes, 
2  Eq.  Ld.  Cas.  1748-1805. 

1  Jones  v.  Dougherty,  10  Ga.  373  ;  Tucker  v.  Palmer,  3  Brev.  47 ;  Bush  v. 
Bush,  1  Strobh  Eq.  377 ;  Den  v.  Troutmun,  7  Ired.  155 ;  McLean  v.  Nelson,  1 
Jones  L.  396;  Robinson  v.  Mauldin,  11  Ala.  997;  Hes  v.  Martin,  69  Ind. 
114;  Pressly  v.  Stribling,  24  Miss.  527 ;  James  v.  Cowing,  82  N.  Y.  449;  Wil- 
liams v.  Dwindle,  51  Cal.  442.  If  the  duty  of  the  trustee  be  purely  discre- 
tionary, the  court  will  not  compel  an  execution.  Stanley  v.  Colt,  5  Wall. 
168 ;  See  post,  sect.  574.  Nor  will  the  court  attempt  to  control  the  discretion 
of  a  trustee  in  any  manner,  except  to  prevent  an  unreasonable  exercise  of 
it,  which,  on  account  of  the  injury  to  the  beneficiaries,  could  not  have  been 
intended  by  the  donor.  Arnold  v.  Gilbert,  3  Sandf.  Ch.  531 ;  Morton  v.  South- 
gate,  28  Me.  41 ;  Zabriskie's  Ex'ors  v.  Wetmore,  26  N.  J.  Eq.  18 ;  Littlefield 
v.  Cole,  33  Me.  552 ;  Leavitt  v.  Beirne,  21  Conn.  1 ;  Goddard  v.  Brown,  12  R. 
I.  31 ;  Pulpress  v.  African  Ch.,  48  Pa.  St.  204 ;  Haydell  v.  Hurck,  5  Mo.  App. 
267;  Starr  v.  Moulton,  97  111.  525;  Vallette  v.  Bennett,  69  111.  632;  Phelps  v. 
Harris,  51  Miss.  789;  Luige  v.  Luchesi,  12Nev.  306;  Rammelsburg  v.  Mitch- 
ell, 29  Ohio  St.  22;  Brophy  v.  Bellamy,  L.  R.  8  Ch.  798;  Bankes  v.  Le  De- 
spencer,  11  Sim.  508;  Costabadie  v.  Costabadie,  6  Hare,  410;  Mauser  v.  Dix, 
8  De  G.  M.  &  G.  371 ;  Prendergast  v.  Prendergast,  3  H.  L.  Cas.  195. 

411 


§    515  TRUSTS.  [part   II. 

court  of  equity  will  grant  the  possession  to  the  cestui  que 
trust  if  consistent  with  the  trust,  and  for  a  further  protec- 
tion may  enjoin  the  trustee  from  proceeding  at  law  in  eject- 
ment.1 

§  515.  Alienation  of  trust  estate.  — It  is  also  a  well-es- 
tablished rule  that  the  trustee  of  a  dry  or  passive  trust  may 
be  compelled  by  decree  in  chancery  to  convey  the  estate  as 
the  cestui  que  trust  may  direct.  And  this  rule,  it  would 
seem,  applies  to  every  species  of  trust  where  such  a  decree 
is  not  inconsistent  with  the  express  terms  of  the  trust. 
Equity  will  give  to  the  cestui  que  trust  the  full  power  to  dis- 
pose of  the  estate,  whenever  it  can  do  so  without  violating 
the  express  or  implied  purpose  of  the  trust,  and  without 
doing  injury  to  any  one  interested  therein.  Where  there  is 
no  prohibition  against  alienation  the  execution  of  the  deed 
of  conveyance  by  trustee  and  cestui  que  trust  passes  the  ab- 
solute title,  and  the  trust  is  destroyed  by  the  consequent 
merger  of  interests.2  To  what  extent  these  general  powers 
exist  in  an  active  trust  must  depend  upon  the  peculiar  limi- 
tations of  such  trust.  Wherever  the  power  of  the  trustee 
involves  the  exercise  of  a  proprietary  authority  over  the 


1  Lewin  on  Tr.  23,  470,  480;  Shankland's  Appeal,  47  Pa.  St.  113;  Harris 
v.  McElroy,  45  Pa.  St.  216 ;  Stevenson  v.  Lesley,  70  N.  Y.  512 ;  Battle  v.  Pet- 
way,  5  Ired.  57G;  Williamson  v.  Wilkins,  14  Ga.  416;  Guppill  v.  Isbell,  2 
Bailey  230 ;  Presley  v.  Stribling,  24  Miss.  527 ;  Heard  v.  Baird,  40  Miss.  800 ; 
Stewart  v.  Chadwick,  8  Iowa,  469.  See  "Watts  v.  Ball,  1  P.  Wms.  108 ;  Lewis 
v.  Lewis,  1  Car.  102;  Cholmondeley  v.  Clinton,  4  Bligh,  115.  But  if  there 
are  other  persons  interested  in  the  estate  the  court  may  either  refuse  to  decree 
the  possession  to  the  cestui  que  trust,  or  impose  such  conditions  and  restrictions 
as  may  be  necessary  for  the  protection  of  the  other  beneficiaries.  Shankland's 
Appeal,  supra;  Harris  v.  McElroy,  supra;  Battle  v.  Petway,  supra;  William- 
son v.  Wilkins,  supra. 

2  1  Cruise  Dig.  448;  Lewin  on  Tr.  470;  Vaux  v.  Parke,  7  W.  &  S.  19; 
Harris  v.  McElroy,  45  Pa.  St.  216;  Barnett's  Appeal.  46  Pa.  St.  399;  Battle 
v.  Petway,  5  Ired.  576 ;  Arrington  v.  Cherry,  10  Ga.  429 ;  Stewart  v.  Chad- 
wick, 8  Iowa,  469. 

412 


CH.  XIII.]  TRUSTS.  §    517 

property  equity  will  regard  him  as  the  owner  so  far  as  it  is 
necessary  for  the  performance  of  the  trust.  And  to  that 
extent  will  the  rights  and  powers  of  the  cestui  que  trust  be 
curtailed.1 

§  516.  Liability  of  third  persons  for  performance  of 
the  trust.  —  It  has  been  held  in  England,  and  in  some  of 
the  American  States,  where  a  trustee  has  a  power  of  sale, 
that  the  land  in  the  hands  of  purchasers  is  subjected  to  a 
constructive  trust,  which  compels  the  purchasers  to  see  to 
the  proper  application  of  the  purchase-money.  This  doc- 
trine has  been  warmly  contested  and  denied  in  many  of  the 
States,  and  presumably  the  rule  is  generally  limited  to  such 
cases  where  the  trust  is  special  and  the  sale  is  for  a  special 
purpose,  as  for  the  satisfaction  of  a  particular  debt  or  claim. 
Where  the  trust  is  general  it  is  impossible  for  the  purchaser 
to  secure  a  proper  application  of  the  purchase  money,  and 
he  is  not  held  liable  for  any  misappropriation  by  the  trustee.2 

§  517.  Compensation  of  trustee.  —  Formerly  the  trustee 
was  not  entitled  to  any  compensation  for  his  services,  it 
being  considered  a  matter  of  honor.  The  policy  of  the  law 
in  respect  thereto  has  since  been  changed,  and  it  is  now  al- 
most the  universal  rule  that  trustees  receive  a  reasonable 


1  Lewin  on  Tr.  470 ;  Barnett's  Appeal,  46  Pa.  St.  399 ;  McCosker  v.  Brady 
1  Barb.  Oh.  329 ;  1  Spence  Eq.  Jur.  496,  497 ;  Culbertson's  Appeal,  76  Pa.  St. 
145;  "Williams'  Appeal,  83  Pa.  St.  377;  Smith  v.  Harrington,  4  Allen,  566; 
Bowditch  v.  Andrew,  8  Allen,  339;  Douglass  v.  Cruger,  80  N.  Y.  15i  But 
when  the  duties  which  have  made  the  trust  active  have  been  performed,  the 
trust  again  becomes  passive,  and  if  it  is  not  executed  by  the  Statute  of  Uses, 
the  court  may  direct  a  conveyance  by  the  trustee  in  accordance  with  the  de- 
sires of  the  cestui  que  trust.  Welles  v.  Castles,  3  Gray,  323 ;  Sherman  v. 
Dodge,  28  Vt.  26 ;  Waring  v.  Waring,  10  B.  Mon.  331 ;  Leonard's  Lessee  v. 
Diamond,  31  Md.  536;  Perry  on  Tr.,  sect.  361. 

2  Story  Eq.  Jur.,  sects  1127,  1130;  1  Cruise  Dig.  450;  Potter  v.  Gardner, 
12  Wheat.  498;  Duffy  v.  Calvert,  6  Gill,  487;  Dunch  v.  Kent,  1  Vern.  260; 
Spalding  v.  Shalmer,  1  Vern.  301 ;  Andrews  v.  Sparhawk,  13  Pick.  393 ;  Davia 
v.  Christian,  15  Gratt.  11 ;  Stall  v.  Cincinnati,  16  Ohio  St.  169. 

413 


§    517  TRUSTS.  [part   II. 

percentage  —  usually  five  per  cent  —  upon  all  disbursements 
made  by  them.  But  they  are  not  permitted  to-  make  any 
further  charge  against  the  trust  estate,  even  though  the  ser- 
vices rendered  may  be  unusual,  and  for  the  performance  of 
which  they  may  have  hired  others.1 

1  Story  Eq.  Jur.,  sect.  1266  ;  1  Cruise  Dig.  451 ;  Robinson  v.  Pett,  2  Eq.  Ld. 
Cas.  512,  538-600  (4th  Am.  ed.) ;  Meacham  v.  Sternes,  9  Paige  Ch.  398;  In  the 
Matter  of  Schell,  53  N.  Y.  9  Paige,  263;  Denny  v.  Allen,  1  Pick.  147  ;  Barrell 
v.  Joy,  16  Mass.  221 ;  Singleton  v.  Lowndes,  9  S.  C.  465 ;  Hall  v.  Hall,  78  N. 
Y.  535 ;  Warbass  v.  Armstrong,  2  Stockt.  Ch.  263 ;  Wagstaff  v.  Lowprne,  23 
Barb.  209.  But  see  Constant  v.  Matteson,  22  111.  546 ;  Mayor  v.  Galluchat,  6 
Eich.  Eq.  1. 

414 


CHAPTER  XIY. 

EXECUTORY  DEVISES. 

Section  530.  Nature  and  origin. 

531.  Executory  devises,  vested  or  contingent. 

532.  Classes  of  executory  devises. 

533.  Distinguished  from  devises  in  prcesenti. 

534.  Reversion  of  estate  undisposed  of. 

535.  Distinguished  from  uses. 

536.  Distinguished  from  remainders. 

537.  Same  —  Limitation  after  a  fee. 

538.  Same  —  Limitation  after  an  estate-tail. 

539.  Same  —  "Where  first  limitation  lapses. 

540.  Same  —  Limitations  after  an  executory  devise. 

541.  Indestructibility  of  executory  devises. 

542.  Limitation  upon  failure  of  issue. 

543.  Same  —  In  deeds. 

544.  Doctrine  of  perpetuity. 

545.  Rule  against  accumulation  of  profits. 

546.  Executory  devises  of  chattel  interests. 

§  530.  Nature  and  origin. — An  executory  devise  is  a 
future  interest  or  estate  in  lands  limited  in  a  will  in  such  a 
manner  that  it  cannot  take  effect  as  a  remainder  or  as  a  fu- 
ture use.  The  law  of  executory  devises  has  been  evolved 
by  a  course  of  judicial  legislation  based  upon  the  Statute  of 
Wills  enacted  in  the  reign  of  Henry  VIII.1  The  cardinal 
rule  for  the  construction  of  wills  is  that  the  intention  of  the 
testator  must  be  carried  out,  if  at  all  possible.  In  conform- 
ity with  this  liberal  rule  of  construction,  the  common-law 
rules  for  the  limitation  of  future  interests  in  real  property 
were  discarded,  and  estates  or  interest  were  created  and  rec- 
ognized under  the  name  of  executory  devises,  which  could 
not  have  been  created  at  common  law  by  deed.     Mr.  Fearne 

1  See  post,  sect.  872. 

415 


§    530  EXECUTORY   DEVISES.  [PART    II. 

defines  an  executory  devise  to  be  "  such  a  limitation  of  a 
future  estate  or  interest  in  lands  as  the  law  admits  in  the 
case  of  a  will,  though  contrary  to  the  rules  of  limitation  in 
conveyances  at  common  law."1  A  remainder,  the  only 
common-law  estate  which  could  be  directly  created  by  con- 
veyance, has  been  defined  to  be  a  future  estate  in  lands 
which  is  preceded  and  supported  by  a  particular  estate  in 
possession,  which  takes  effect  in  possession  immediately 
upon  the  determination  of  the  prior  or  particular  estate, 
and  which  is  created  at  the  same  time  and  by  the  same  con~ 
veyance.2  It  follows,  therefore,  that  every  devise  of  a  fu- 
ture estate,,  which  is  not  preceded  by  a  particular  estate 
created  by  the  same  instrument,  or  which,  if  there  is  such 
a  prior  limitation,  takes  effect  in  possession  before  or  after 
the  natural  expiration  of  the  prior  limitation,  is  an  executory 
devise.3  An  executory  devise  was  once  held  to  be  an  inter- 
est somewhat  different  from  an  estate,  although  not  a  mere 
naked  possibility.4  But  whatever  need  there  may  have  been 
for  such  refined  distinctions  in  the  incipient  stages  of  the 
growth  of  those  interests,  none  exists  now,  and  for  all  prac- 
tical purposes  executory  devises  may  be  considered  as  es- 
tates in  land,  having  all  the  characteristics  and  appurtenances 
of  a  common-law  estate,  differing  from  the  latter  only  in 
the  mode  of  creation  and  limitation.     They  are  alienable 

1  Fearne  Cont.  Rem.  386;  2  Washb.  on  Real  Prop.  680;  2  Bla.  Com.  172; 
4  Kent's  Com.  264;  2  Jar.  on  Wills  (5th  Am.  ed.),  483;  Purefoy  v.  Rogers,  2 
Lev.  39;  s.  c,  2  Saund.  388;  Goodright  v.  Cornish,  4  Mod.  258;  McRee's 
adm'rs  v.  Means,  34  Ala.  349. 

2  See  ante,  sect.  396. 

3  Moore  v.  Parker,  1  Ld.  Raym.  37 ;  Doe  v.  Scarborough,  3  Ad.  &  El.  2, 
897 ;  Key  v.  Gamble,  2  Jones,  123 ;  Gore  v.  Gore,  2  P.  Wms.  28 ;  Harris  v. 
Barnes,  4  Burr.  2157 ;  Doe  v.  Morgan,  3  T.  R.  763 :  Bullock  v.  Stone,  2  Ves. 
521. 

4  In  Jones  v.  Roe,  3  T.  R.  88,  Chief  Justice  Willes  says:  "Executory  de- 
vises are  not  naked  possibilities,  but  are  in  the  nature  of  contingent  remain- 
ders." See  Wright  v.  Wright,  1  Ves.  sr.  411 ;  Hammington  v.  Rudgard,  10 
Rep.  52  b. 

416 


CH.  XIV.]  EXECUTORY    DEVISES.  §    532 

and  devisable  in  equity,  whether  the  devises  are  vested  in 
title  or  contingent,  and  descendible  to  the  devisee's  heirs, 
if  he  should  die  before  the  devise  vests  in  possession.1 

§  531.  Executory  devises,  vested  or  contingent.  — The 

devise  is  vested  where  the  person  who  is  to  take  is  in  esse, 
and  is  ascertained,  and  where  the  event  upon  which  he  is  to 
take  is  also  certain.  Such  a  devisee  takes  a  vested  future 
estate.  Where  the  estate  is  to  vest  upon  an  uncertain  event 
or  in  a  person  not  definitely  ascertained,  the  executory  de- 
vise is  contingent,  and  partakes  of  the  nature  of  a  contin- 
gent remainder. 

§  532.  Classes  of  executory  devises. —  Some  of  the  writ- 
ers have  indulged  in  a  minute  subdivision  of  executory  de- 
vises, but  it  tends  apparently  to  obscure  and  mystify,  rather 
than  to  classify,  the  subject,  and  it  will  be  disregarded,  and 
the  following  simple  subdivision  employed  in  its  stead : 
First,  where  the  devise  takes  effect  in  the  future  without  a 
sufficient  preceding  limitation  to  support  it ;  secondly,  where 
the  devise  vests  in  derogation  of  a  preceding  limitation,  and 
thirdly,  where  the  devise  is  a  future  limitation  in  a  chattel 


1  Purefoy  v.  Rogers,  2  Wra.  Saund.  388 ;  Wright  v.  Wright,  1  Ves.  sr.  409 ; 
Jones  v.  Roe,  3  T.  R.  88 ;  Proprietors  Brattle  Sq.  Church  v.  Grant,  3  Gray, 
161 ;  Hall  v.  Chaffee,  14  N.  H.  215;  Edwards  v.  Varick,  6  Denio,  664;  Stover 
v.  Eycleshimer,  46  Barb.  87 ;  Den  v.  Manners,  1  Spence,  142 ;  Kean  v.  Hof- 
locker,  2  Harr.  103 ;  Hall  v.  Robinson,  3  Jones  Eq.  348.  Mr.  Washburne 
states  that  executory  devises  are  alienable  only  when  the  devisee  is  an  ascer- 
tained person  (2  Washb.  on  Real  Prop.  681),  and  this  seems  to  be  the  gener- 
ally accepted  doctrine.  But,  as  has  been  stated  in  respect  to  the  alienability 
of  contingent  remainders  (see  ante,  sect.  411,  note),  since  the  conveyance  of  a 
future  contingent  interest  only  operates  in  equity  by  way  of  estoppel,  if  a 
grant  of  the  executory  devise  is  made  by  one  who,  although  not  yet  ascertained 
to  be  the  devisee,  becomes  the  devisee  subsequently  by  the  happening  of  the 
contingency  by  which  the  devisee  is  to  be  ascertained,  his  grant  would  by  es- 
toppel convey  to  his  grantee  the  interest  which  he  thus  subsequently  acquires. 
See  post,  sects.  727,  730,  iscl. 

27  417 


§    533  EXECUTORY    DEVISES.  [PART    II. 

interest.1     The  third  class  will  be  considered  in  a  subsequent 
paragraph.     The  first  class  would  not  only  include  those 
cases  where  the  future  limitation  is  not  preceded  by  any 
particular  limitation,  but  also  those  where  the  preceding 
limitation  is  not  sufficient  to  support  the  future  estate  as 
i  remainder.     Where  the  executory  devise  is  vested,  the 
preceding  limitation  may    be    insufficient   by    terminating 
naturally  before  the  former  is  to  take  effect.     And  where 
the  devise  is    contingent,  the  preceding  limitation  would 
be  insufficient  not  only  for  the  cause  just  mentioned,  but 
also  when  it  is  not  a  freehold  estate.     In  any  one  of  these 
cases  the  future  limitations,  whether  vested  or  contingent, 
will  take  effect  as  executory  devises.2     The  second   class 
includes  all  future  estates,  which  by  vesting  defeat  or  cur- 
tail a  prior  limitation.3     This   class    is    also  called  condi- 
tional limitations,  and  corresponds  to  shifting  uses,  while 
the  first  class  is  similar  to  springing  uses,  but  containing 
other  cases  which  as  uses  would  be  void  contingent  uses, 
viz.:    where   the   preceding  limitation  is  not  sufficient  to 
support  the  future  estate.4 

§  533.  Distinguished  froni  devises  in  prsesenti.  —  Ordi- 
nary devises  vest  at  the  death  of  the  testator,  and  if  for  any 

1  This  is  the  subdivision  employed  by  Mr.  Fearne,  Mr.  Cruise,  and  Mr. 
Washburn.  Fearne  Cont.  Rem.  399 ;  6  Cruise  Dig.  366 ;  2  Washb.  on  Real 
Prop.  683.  See  Scatterwood  v.  Edge,  1  Salk.  229 ;  Nightingale  v.  Burrell,  15 
Pick.  104. 

2  2  Washb.  on  Real  Prop.  684;  Fearne  Cont.  Rem.  400;  2  Bla.  Com.  173; 
Zeslieu.  Marshall,  31  Barb.  566;  Chambers  v.  Wilson,  2  Watts,  495;  Reding 
v.  Stone.  8  Vin.  Abr.  215,  pi.  5;  Thelluson  v.  Woodford,  1  Bos.  &  P.  N.  R. 
357 ;  Snowe  v.  Cutter,  1  Lev.  135 ;  Clarke  v.  Smith,  1  Lutw.  798 ;  Key  o.  Gam- 
ble, 2  Jones,  123;  Doe  v.  Scarborough,  3  Ad.  &  El.  2,  897. 

3  Doe  v.  Fonnereau,  1  Dougl.  487 ;  Marks  v.  Marks,  10  Mod.  423 ;  Nicholl 
v.  Nicholl,  2  W.  Bl.  1159;  Doe  v.  Heneage,  4  T.  R.  13;  Stanley  v.  Stanlej', 
16  Ves.  491 ;  Carr  v.  Erroll,  6  East,  58;  Doe  v.  Beauclerk,  11  East,  657;  Pro- 
prietors Brattle  Sq.  Church  v.  Grant,  3  Gray,  146;  Brightman  v.  Brightman, 
100  Mass.  238 ;  Jackson  v.  Blanshau,  3  Johns.  299 ;  Hatfield  v.  Sneden,  42  Barb. 
615;  s.  c,  54  N.  Y.  285;  Hilliary  v.  Hilliary's  Lessee,  26  Md.  274. 

*  See  ante,  sects.  482-484,  487. 
418 


CH.  XIV.]  EXECUTORY    DEVISES.  §    533 

cause  the  devisee  is  unable  to  take  at  that  time,  the  devise 
lapses.  Its  vesting  will  not  be  suspended,  and  it  kept  alive 
as  an  executory  devise,  until  the  devisee  is  able  to  take. 
Where,  therefore,  the  devise  is,  in  express  words  or  by  nec- 
essary implication,  to  vest  immediately  upon  the  death  of 
the  testator,  it  cannot  under  any  circumstances  be  construed 
to  be  a  future  or  executory  devise,  in  order  to  carry  out 
the  supposed  intention  of  the  testator  that  the  devise  shall 
at  all  events  take  effect.  Thus,  a  devise  to  the  heirs  of  A., 
standing  alone,  would  be  considered  a  devise  in  proesenli, 
and  if  A.  should  be  living  at  the  testator's  death,  the 
devise  would  lapse  for  the  want  of  some  ascertained  person 
in  being.  In  order  to  make  such  a  devise  executory,  it  must 
expressly  or  by  implication  refer  to  the  death  of  A.,  as  the 
time  when  the  devise  is  to  take  effect.1  But  the  courts  will 
avail  themselves  of  very  slight  circumstances  in  order  to 
reach  that  conclusion.2 


1  2  Washb.  on  Keal  Prop.  685 ;  6  Cruise  Dig.  422 ;  Doe  v.  Carleton,  1  Wils. 
225;  Goodright  v.  Cornish,  1  Salk.  226;  Porter's  Case,  1  Eep.  24;  Ingliss  v. 
Trustees,  etc.,  3  Pet.  99;  Leslie  v.  Marshall,  31  Barb.  565.  See  post,  sects. 
882,  884. 

2  Goodright  v.  Cornish,  1  Salk.  226 ;  Harris  v.  Barnes,  4  Burr.  2157 ;  Yea- 
ton  v.  Koberts,  28  N.  H.  465 ;  Holderby  v.  Walker,  3  Jones  Eq.  46 ;  Thompson 
v.  Hoop,  6  Ohio  St.  480;  Darcus  v.  Crump,  6  B.  Mon.  365.  Thus,  if  there  is 
a  devise  to  the  children  of  A.  to  be  begotten,  although  the  devise  would,  with- 
out the  words  in  italics,  have  been  construed  as  a  devise  in  prcesenti,  and  would 
have  been  confined  to  the  children  born  at  the  tpstator's  death,  the  presence  of 
the  words  to  be  begotten,  or  other  words  of  similar  import,  would  be  sufficient 
evidence  of  the  intention  of  the  testator  to  include  all  the  children  of  A., 
whether  they  are  born  before  or  after  his  death,  and  the  devise  would,  there- 
fore, be  executory.  Mogg  v.  Mogg,  1  Meriv.  654 ;  Newill  v.  Newill,  L.  R.  1? 
Eq.  432  ;  Eldowes  v.  Eldowes,  30  Beav.  603 ;  Amiable  v.  Patch,  3  Pick.  360: 
Hoge  v.  Hoge,  1  Serg.  &  R.  144;  Rupp  v.  Eberly,  79  Pa.  St.  141 ;  Napier  v. 
Howard,  3  Ga.  202  ;  Dunn  v.  Bk.  of  Mobile,  2  Ala.  152.  And  where  there  are 
no  persons  in  esse,  who  would  come  under  the  class  of  devisees  named  at  tho 
time  of  the  testator's  death,  nor  had  there  been  any  before  his  death,  it  seem., 
to  he  the  presumption  of  lsiw  that  the  testator  intended  to  create  an  executory 
devise.    Shepherd  v.  Ingram,  Amb.  448 ;  Weld  v.  Bradbury,  2  Vern.  705 ;  Doa 

419 


§    534  EXECUTORY  DEVISES.  [PART   II, 

§  534.  Reversion  of  estate  undisposed  of.  — Where  there 
is  no  limitation  preceding  the  executory  devise,  the  estate 
descends  to  the  testator's  heirs  and  remains  in  them  until 
the  event  happens,  when  the  devise  is  to  take  effect.  And 
if  the  executory  devise  is  an  estate  less  than  a  fee  simple, 
the  land  will  revert  to  the  heirs  upon  its  termination.1  If 
the  preceding  limitation  is  not  sufficient  to  support  the  fu- 
ture limitation  as  a  contingent  remainder,  and  the  former 
expires  before  the  latter  vests,  there  will  be  an  intermediate 
reversion  of  the  estate  to  the  heirs.  The  same  general  prin- 
ciples would  apply  to  executory  devises  of  the  second  class. 
The  only  difficulty  experienced  in  applying  them  is  when 
the  vesting  and  enjoyment  of  the  executory  devise  do  not 
absolutely  require  the  destruction  of  the  entire  preceding 
estate,  as  where  the  former  is  a  particular  estate  and  the 
latter  is  a  fee.  Thus,  where  the  land  is  devised  to  A.  and 
his  heirs,  and,  upon  the  happening  of  some  contingency  to 
B.  for  life,  it  is  a  mooted  question,  both  sides  sustained  by 
eminent  authority,  whether  the  estate  in  A.  would  be  de- 
stroyed altogether  by  the  vesting  of  B.'s  estate  for  life,  or 
whether  A.  is  only  divested  of  his  estate  during  the  contin- 
uance of  B.'s  estate,  and  retains  the  reversion  in  him  and  his 
heirs.  Mr.  Fearne  supports  the  former  view,  while  the 
latter  is  maintained  by  Mr.  Preston,  Mr.  Powell,  and  Mr. 

v.  Carleton,  1  Wils.  225 ;  Haughton  v.  Harrison,  2  Atk.  329 ;  Ross  v.  Adams, 
28  N.  J.  L.  1G0.  And  where  there  is  a  devise  to  children,  or  some  other  defi- 
nite class  of  persons,  and  some  of  them  are  born  and  others  are  unborn  at  the 
testator,  or  where  none  are  born  then,  but  some  come  into  being  afterwards, 
leaving  others  which  are  subsequently  born,  those  who  are  in  being  take  vested 
estates,  and  are  entitled  to  the  whole  income  until  the  others  are  born,  when 
the  devise  opens  and  lets  them  in.  These  executory  devises  have  a  close  re- 
semblance to  remainders  to  a  class.  Shepherd  v.  Ingram,  Amb.  448;  Main- 
waring  v.  Beevor,  8  Hare,  44 ;  Shawe  v.  Cunliffe,  4  B.  C.  144 ;  Mills  v.  Norris, 
5  Ves.  335;  Stone  v.  Harrison,  2  Call,  715.     See  ante,  sect.  402. 

1  2  Washb.  on  Heal  Prop.  686,  687 ;  2  Prest.  Abst.  120 ;  4  Kent's  Com. 
268. 

420 


CH.  XIV.]  EXECUTORY   DEVISES.  §    535 

Washburn.1  The  intention  of  the  testator  certainly  must 
govern  in  such  a  case.  If  a  fee  simple  be  devised  to  one, 
there  is  a  manifest  intention  on  the  part  of.  the  testator  to 
deprive  his  own  heirs  of  any  interest  in  the  land.  If  he 
attaches  thereto  an  executory  devise  to  B.  for  life,  in  the 
absence  of  any  express  evidence  to  the  contrary,  it  only  so 
far  negatives  the  presumed  intention  that  A.  should  have 
the  fee  as  is  required  to  give  to  B.  an  estate  for  his  life. 
Upon  the  vesting  of  B.'s  estate  the  present  estate  in  A. 
would  be  only  suspended  until  B.'s  death,  when  the  estate 
will  revert  to  him  and  his  heirs.2 

§  535.  Distinguished  froni  uses.  — Uses  may  be  created 
by  devise  as  well  as  by  deed,  and  a  future  limitation  in 
a  will  will  not  be  construed  as  an  executory  devise  if 
it  is  limited  as  a  use,  especially  if  there  is  a  seisin 
raised  by  the  will  to  support  the  use.  Thus,  where  the 
devise  is  to  A.  to  the  use  of  B.,  the  Statute  of  Uses 
would  be  required  to  operate  upon  the  devise  and  trans- 
fer the  legal  estate  from  A.  to  B.3  But  the  mere  expres- 
sion  "to   the   use   of"    appearing   in   a  devise  will  not 

1  2  Washb.  on  Real  Prop.  686 ;  Fearne  Cont  Rem.  251 ;  2  Prest.  Abst.  140 ; 
2  Pow.  Dev.  241.  Mr.  Washburn  states  tbat  a  case,  involving  this  question, 
is  said  to  have  arisen  in  the  Delaware  courts,     p.  687. 

2  Mr.  Powell  says :  "  To  this  important  rule,  namely,  that  an  estate  subject 
to  an  executory  devise,  to  arise  on  a  given  event,  is,  on  the  happening  of  that 
event,  defeated  only  to  the  extent  of  the  executory  interest,  the  only  possible 
objection  that  can  be  advanced  is  the  total  absence  of  direct  authority  for  it, 
for  the  books  do  not  furnish  a  single  example  of  its  application."  2  Pow. 
Dev.  241. 

s  Co.  Lit.  271b,  note  231,  sect.  3;  Sandf.  on  Uses,  243;  2  "Washb.  on  Real 
Prop.  433,  434.  Whether  the  use  will  be  executed  by  the  statute,  or  remain  a 
trust,  leaving  the  legal  title  in  the  devisee  as  trustee,  is  governed  by  the  same 
rules  which  apply  to  uses  created  by  act  inter  vivos.  See  Doe  v.  Field,  2  15.  & 
Ad.  664;  Doe  v.  Homfray,  6  A.  &  E.  206;  Norton  v.  Leonard,  12  Pick.  152; 
Ayer  v.  Ayer,  16  Pick.  327  ;  Upham  v.  Varney,  15  N.  H.  467  ;  Wood  v.  Wood, 
6  Paige  Ch.  696. 

421 


§    537  EXECUTORY   DEVISES.  [PART    II. 

necessarily  convert  the  devise  into  a  use,  and  it  is  held 
that  a  simple  devise  to  the  use  of  A.  will  take  effect  as 
an  executory  devise.1 

§  53C).  Distinguished  from  remainders.  —  Whenever  a 
future  limitation  in  a  devise  can  take  effect  as  a  remainder, 
it  will  be  construed  as  such.  It  cannot  operate  as  an  ex- 
ecutory devise.  This  rule  of  construction  arises  from  the 
desire  of  the  courts  to  confine  themselves  to  common-law 
estates  and  the  rules  governing  them  ;  and  the  doctrine  of 
executory  devises  is  recognized  and  applied  only  when  the 
intention  of  the  testator  cannot  otherwise  be  effectuated.2 
What  are  the  requisites  and  characteristics  of  remainders 
have  been  already  discussed,  and  it  will  be  necessary  to  men- 
tion here  011I3'  certain  important  cases  in  which  doubt  may 
arise.  In  respect  to  the  first  class  of  executory  devises 
where  there  is  no  sufficient  particular  estate,  or  none  at  all, 
no  question  can  arise  as  to  the  proper  construction.  The 
difficulty  is  presented  in  the  second  class,  in  determining 
whether  the  second  limitation  takes  effect  in  derogation  of 
the  prior  estate. 

§  537.  Same  —  Limitation  after  a  fee. — It  has  been 
seen  that  a  remainder  cannot  be  limited  after  a  fee.3  And 
where  the  preceding  estate  is  in  fact  a  fee,  whether  it  is 

1  1  Sudden  on  Pow.  2,  3. 

2  Purefoy  v.  Rogers,  2  Wm.  Saund.  388 ;  Doe  v.  Morgan,  3T.R  763 ;  Doe 
v.  Fonnereau,  Dougl.  487;  Doe  v.  Considine,  6  Wall.  475;  Nightingale  v.  Bur- 
rell,  15  Pick.  104;  Terry  v.  Briggs,  1 12  Mete.  17;  Hall  v.  Priest,  6  Gray,  18; 
Manderson  v.  Lukens,  23  Pa.  St  31.  In  Purefoy  v.  Rogers,  the  rule  was  stated 
thus :  "  "Where  a  contingency  is  limited  to  depend  upon  an  estate  of  freehold, 
which  is  capable  of  supporting  a  remainder,  it  shall  never  be  construed  to  be 
an  executory  devise,  but  a  contingent  remainder  only."  Goodright  o.  Cornish, 
4  Mod.  258;  Reeve  v.  Long,  Carth.  310;  Doe  v.  Scarborough,  3  Ad.  &  El.  2, 
897  ;  Gore  ».  Gore,  2  P.  Wins.  28  ;  Harris  v.  Barnes,  4  Burr.  2157. 

»  See  ante,  sects.  396,  398,  418. 

422 


CH.  XIV.]  EXECUTORY    DEVISES.  §    538 

vested  or  contingent,  a  subsequent  limitation,  which  is  made 
to  defeat  the  preceding  estate  after  it  has  vested,  is  an  execu- 
tory devise  and  not  a  remainder.  But  the  fact  that  there  is  a 
preceding  limitation  of  the  fee  will  not  necessarily  make 
the  subsequent  limitation  an  executory  devise.  If  the  sub- 
sequent limitation  defeats  and  takes  the  place  of  the  pre- 
ceding limitation  upon  the  breach  of  a  condition,  subsequent 
to  the  vesting  of  the  first  estate,  the  second  limitation  is  an 
executory  devise.1  But  if  the  subsequent  limitation  is  merely 
an  alternate  devise  which  depends  upon  a  condition  prece- 
dent to  the  first,  and  which  must  vest,  if  at  all,  before  the 
first,  then  it  is  a  contingent  remainder  and  not  an  executory 
devise.  It  is  an  alternate  remainder,  or  a  remainder  with 
a  double  aspect.2 

§  538.  Same  —  Limitation  after  an  estate  tail.  —  A  re- 
mainder can  be  limited  after  an  estate  tail,  which  is  to  take 
effect  upon  the  failure  of  issue.3  But  it  is  often  difficult  in 
a  devise  to  one  and  his  heirs,  and  a  limitation  over  in  case 
of  a  failure  of  issue,  to  discover  whether  it  was  the  inten- 
tion of  the  testator  to  give  to  the  first  taker  an  estate  tail, 
or  only  that  his  estate  of  inheritance  should  cease  when 
there  should  be  a  failure  of  issue,  the  failure  of  issue  be- 
ing the  contingency,  when  the  limitation  over  should  take 
effect.     If  it  was  his  intention  to  create  an  estate  tail,  the 

1  Gulliver  v.  Wicketts,  1  "Wils.  105;  Meadows  v.  Parry,  1  Ves.  &  B.  124; 
Fonnereau  v.  Fonnereau,  3  Atk.  315 ;  Doe  v.  Selby,  2B.&C.  930;  Nightin- 
gale v.  Burrell,  15  Pick.  104;  Doe  v.  Beauclerk,  11  East,  657;  Carr  v.  Erroll, 
(i  East,  58 ;  Doe  v.  Heneage,  4  T.  R.  13 ;  Nicholl  v.  Nicholl,  2  W.  Bl.  1159. 

2  Luddington  v.  Kime,  1  Ld.  Ptaym.  203;  Goodwrightu.  Dunham,  1  Dougl. 
265-;  Doe  v.  Selby,  2  B.  &C.-926;  Doe  v.  Challis,  2  Eng.  L.  Eq.  215;  Dun- 
woodie  v.  Heed,  3  Serg.  &  R.  452;  Taylor  v.  Taylor,  63  Pa.  St.  481;  3  Am. 
Rep.  565.     See  ante,  sect.  415. 

8  2  Washb.  on  Real  Prop.  690 ;  Wiscot's  Case,  2  Rep.  61 ;  Roe  v.  Baldwere, 
5  T.  R.  110;  Paj;e  v.  Hayward,  2  Salk.  570;  Wilkes  v.  Lion,  2  Cow.  392;  Hall 
v.  Priest,  6  Gray,  18;  Poole  v.  Morris,  29  Ga.  374.     See  ante,  sect.  398. 

423 


§    539  EXECUTORY   DEVISES.  [PART   II. 

limitation  over  is  a  remainder;1  otherwise,  an  executory 
devise.2 

1  Parker  v.  Parker,  5  Mete.  134;  Nightingale  v.  Burrill,  15  Pick.  104;  Al- 
len v.  Trustees,  102  Mass.  263;  Hannau  v.  Osborn,  4  Paige  Ch.  336;  Conklin 
v.  Conklin,  3  Sandf.  Ch.  64;  Dolfe  v.  Van  Nostrand,  2  N.  Y.  436;  Ferris  v. 
Gibson,  4  Edw.  Ch.  707 ;  Morehouse  v.  Cotheal,  21  N.  J.  L.  480;  Goddard  v. 
Goddard,  10  Pa.  St.  79;  Taylor  v.  Taylor,  63  Pa.  St.  481 ;  3  Am.  Kep.  565; 
Hill  v.  Hill,  74  Pa.  St.  173 ;  15  Am.  Rep.  545.  And  at  common  law  the  limi- 
tation over  upon  failure  of  issue  is  always  presumed  to  be  a  remainder  after 
an  estate  tail,  unless  there  is  something  in  the  context  to  the  contrary,  in  con- 
formity with  the  general  rule  requiring  a  future  limitation  to  be  construed  as  a 
remainder,  if  it  can  take  effect  as  such.  Hawley  v.  Northampton,  8  Mass.  3; 
Parkers.  Parker,  5  Mete.  134;  Yedder  v.  Evartson,  3  Paige,  281;  Wolfe  v. 
Van  Nostrand,  2  N.  Y.  436;  Stehman  v.  Stehman,  1  "Watts,  466;  Wall  v.  Ma- 
guire,  21  Pa.  St.  248;  Manderson  v.  Lukens,  23  Pa.  St.  31.  But  it  must  be  re- 
membered that  estates  tail  have  now  been  abolished  in  very  many  of  the  States ; 
in  some  they  are  converted  into  fees  simple,  while  in  others  the  first  taker  has 
an  estate  for  life,  and  the  rest  of  the  estate  constitutes  a  contingent  remainder 
in  fee  in  the  first  taker's  issue  and  their  descendants.  See  ante,  sect.  52.  In 
both  classes  of  States  the  doctrine  that  a  remainder  can  be  limited  after  a  fee 
has  become  obsolete  and  impossible  through  the  inability  to  create  an  estate 
tail.  If  there  is,  in  one  of  these  States,  a  devise  to  A.  and  the  heirs  of  his  body, 
with  a  limitation  over  upon  failure  of  issue,  the  limitation  over  can  only  take 
effect  as  an  executory  devise,  and  will  be  a  good  or  a  void  limitation,  accord- 
ing as  the  testator  is  construed  to  intend  a  definite  or  indefinite  failure  of  issue. 
See  post,  sect.  542. 

2  Jackson  v.  Chew,  12  Wheat.  153 ;  Jackson  v.  Elmendorf,  3  Wend.  222 ; 
Jackson  v.  Thompson,  6  Cow.  178;  Jackson  v.  Staats,  11  Johns.  337;  Pondr. 
Bergh,  10  Paige,  140;  Guernsey  v.  Guernsey,  36  N.  H.  267-  Lion  v.  Burtiss, 
20  Johns.  483;  Richardson  v.  Noyes,  2  Mass.  56;  Couch  v.  Gorham,  1  Conn. 
36;  Rapp  v.  Rapp,  6  Pa.  St.  45;  Mifflin  v.  Neal,  6  Serg.  &  R.  460;  Nicholson 
v.  Bettle,  57  Pa.  St.  384;  Morris  v.  Potter,  10  R.  I.  58;  Sutherland  v.  Cox,  3 
Dev.  L.  394 ;  Garland  v.  AVatts,  4  Ired.  Eq.  287  ;  Burfoot  v.  Burfoot,  2  Leigh, 
119;  Hart  v.  Thompson,  3  B.  Mon,  482;  Allender's  Lessee  v.  Sussan,  33  Md. 
11 ;  3  Am.  171.  Generally  the  construction  depends  upon  the  express  words  of 
the  testator  used  in  limiting  the  estate.  But  if  they  leave  the  character  of  the 
limitation  doubtful,  then  resort  must  be  had  to  the  context;  and  if  it  appears- 
from  the  context  that  it  was  the  intention  of  the  testator  to  create  an  executory 
devise,  it  will  be  held  to  be  one,  notwithstanding  the  ordinary  presumption 
that  such  a  limitation  is  a  remainder.  The  presumption  prevails  only  when  it 
is  absolutely  impossible  to  ascertain  the  intention  of  the  testator.  Person  t>. 
Dodge,  23  Pick,  287 ;  Hall  v.  Chaffee,  14  N.  H.  215 ;  Hill  v.  Hill,  4  Barb.  419  ; 
Den  v.  Allaire,  20  N.  J.  L.  6 ;  Armstrong  v.  Kent,  21  N.  J.  L.  509;  Kennedy 
v.  Kennedy,  29  N.  J.  L.  185 ;  Scott  v.  Price,  2  Serg.  &  R.  59 ;  Berg  v.  Ander- 
son, 72  Pa.  St.  87 ;  Hill  v.  Hill,  74  Pa.  St.  173 ;  15  Am.  Rep.  545  ;  Hilleary  v. 

424 


CH.  XIV.]  EXECUTORY   DEVISES.  §    540 

§  539.   Same  —  Where    first    limitation    lapses.  —  The 

will  goes  into  effect  at  the  testator's  death,  and  is  construed 
according  to  the  circumstances  surrounding  the  testator  at 
that  time.  No  change  of  circumstances  can  affect  the  will 
which  occurs  afterwards.  If,  therefore,  there  be  a  suffi- 
cient particular  estate  to  support  the  future  contingent  lim- 
itation at  the  death  of  the  testator,  it  will  take  effect  as  a 
contingent  remainder,  and  any  subsequent  lapse  of  the.joar- 
ticular  estate,  before  the  future  estate  vested,  would  clef  eat 
such  contingent  estate.  Once  a  remainder  always  a  remain- 
der. But  if  the  particular  estate  is  void  or  lapses  because 
of  a  change  of  circumstances,  occurring  between  the  execu- 
tion  of  the  will  and  the  testator's  death,  the  devise  will  b 
construed  as  if  there  had  been  no  preceding  limitation,  and 
the  contingent  limitation  will  be  supported  as  an  executory 
devise.1 

§  540.   Same — Limitations  after  an  executory  devise. — 

If  there  are  successive  limitations  which  take  effect  after  an 
executory  devise,  they  are  all  executory  devises  until  the 

Hilleary,  26  Md.  275 ;  Eucker  v.  Lambden,  12  Smed.  &  M.  231 ;  Jones  v.  Mil- 
ler, 13  Ind.  337 ;  Booker  v.  Booker,  5  Humph.  505 ;  Smith  v.  Hunter,  23  Ind. 
580.  So  also  where  a  statute  makes  all  limitations  over  upon  failure  of  issue 
refer  to  a  definite  failure  of  issue,  the  limitation  will  be  construed  ordinarily 
to  be  an  executory  devise.  Pinkham  v.  Blair,  57  N.  H.  226 ;  Macombe  v.  Mil- 
ler, 26  Wend.  229;  Wilson  v.  Wilson,  32  Barb.  328;  McKee  v.  Means,  34  Ala. 
349.  See  post,  sect.  542,  for  a  discussion  of  the  question,  when  a  "failure  of 
issue"  will  be  construed  to  mean  a  definite  failure  of  issue,  and  what  would 
be  the  effect  upon  the  executory  devise  of  the  construction  that  ii,  means  an. 
indefinite  failure  of  issue. 

1  2  Washb.  on  Keal  Prop.  691 ;  6  Cruise  Dig.  422 ;  Fearne  Cont.  Rem.  625, 
626 ;  Purefoy  v.  Rogers,  2  Saund.  388 ;  Doe  v.  Howell,  10  B.  &  C.  191 ;  Ave- 
lyn  v.  Ward,  1  Ves.  sr.  420;  Hopkins  v.  Hopkins,  1  Atk.  581 ;  Mogg  v.  Mogg, 
1  Meriv.  703 ;  Bullock  v.  Bennett,  31  Eng.  L.  &  Eq.  463 ;  Doe  d.  Scott  v. 
Roach,  5  M.  &  Sel.  48 ;  Mathis  v.  Hammond,  6  Rich.  Eq.  121.  So,  also,  if  the 
prior  devise  should  fail  by  a  refusal  of  the  devisee  to  accept  it,  the  future  lim- 
itation, which  would  otherwise  be  a  contingent  remainder,  will  take  effect  aa 
an  executory  devise.  Yeaton  v.  Roberts,  28  N.  H.  459 ;  Eaton  v.  Straw,  18  N. 
H.  320 ;  tioddard  v.  Goddard,  10  Pa.  St.  79 ;  Thompson  v.  Hoop,  6  Ohio  St. 
480. 

425 


§    541  EXECUTORY    DEVISES.  [PART    II. 

first  limitation  takes  effect  in  possession.  But  upon  the 
happening  of  that  event  they  will  become  and  be  construed' 
as  remainders  if  they  are  capable  of  sustaining  that  relation 
to  the  preceding  limitation.  Such  would  be  the  case,  if  the 
devise  was  to  A.  for  life  six  months  after  the  testator's 
death,  remainder  to  B.  in  fee.  During  the  six  months  both 
limitations  would  have  the  character  of  executory  devises 
in  respect  to  the  rights  of  the  testator's  heirs,  butB.'s  estate 
would  be  a  remainder  in  respect  to  A.1  And  in  limitations 
of  this  character  the  first  executory  devise  may  be  contin- 
gent, while  the  second  is  certain  and  vested.  Until  the  first 
is  vested  the  second  is  vested,  subject  to  be  opened  and  to 
let  in  the  first,  when  it  vests.2  And  if  the  first  limitation 
lapses  the  second  takes  effect  in  possession  as  an  executory 
devise,  as  if  there  had  been  no  preceding  limitations.3 

§  541.  Indestructibility  of  executory  devises. — Since 
executory  devises  are  not  dependent  for  support  upon  any 
preceding  estate,  it  cannot  be  altered  or  defeated  by  any 
act  of  the  first  taker,  unless  such  act  is  made  by  the  terms 
of  the  will  the  occasion  of  defeating  the  devise.  Feoffment 
by  the  first  taker  will  not  otherwise  destroy  the  executory 
■devise,  as  it  would  a  contingent  remainder.4  In  England 
an  exception  seems  to  have  been  made  in  the  case  of  an  ex- 
ecutory devise  taking  effect  in  derogation  of  an  estate  tail, 
where  a  recovery  suffered  by  the  tenant  in  tail  would  also 

1  2  Washb.  on  Real  Prop.  691,  692 ;  2  Prest.  Abst.  173 ;  Purefroy  v.  Rog- 
ers, 2  Win.  Saund.  388,  note ;  Brownsword  v.  Edwards,  2  Ves.  sr.  247 ;  Hop- 
kins v.  Hopkins,  1  Atk.  581 ;  Doe  v.  Howell,  10  B.  &  C.  191 ;  Fearne  Cont. 
Rem.  503 ;  Pay's  Case,  Cro.  Eliz.  878. 

2  2  Washb.  on  Real  Prop.  693 ;  Fearne  Cont.  Rem.  506. 

3  See  ante,  sect.  539. 

4  2  Washb.  698,  699;  2  Bla.  Com.  173;  Fearne  Cont.  Rem.  418;  Prop'rs 
Brattle  Sq.  Church  v.  Grant,  3  Cray,  146;  Downing  v.  Wherrin,  19  N.  H.  9; 
Andrews  v.  Roye,  12  Rich.  544 ;  McRee's  Adm'rs  v.  Means,  34  Ala.  349 ;  Smith 
w.  Hunter,  23  Ind.  582 ;  Miller  v.  Chittenden,  4  Iowa,  252. 

426 


CH.  XIV.]  EXECUTORY   DEVISES.  §    542 

defeat  the  devise.1  As  recoveries  do  not  obtain  in  this  coun- 
try this  exception  is  of  no  importance  to  an  American  law- 
yer. 

§  542.  Limitation  upon  failure  of  issue. — In  deter- 
mining whether  a  future  limitation  vesting  upon  a  failure  of 
issue  is  a  remainder  or  an  executory  devise,  two  points  are 
to  be  considered.  The  first  is  whether  the  failure  relates  to 
the  issue  of  the  first  taker,  or  to  that  of  a  stranger.  In  the 
first  instance  the  second  limitation,  in  the  absence  of  an  ex- 
press contrary  intention,  will  so  limit  the  prior  devise  as  to 
convert  it  into  an  estate  tail,  thereby  making  the  second 
limitation  a  remainder  after  an  estate  tail.  If  it  be  the  issue 
of  a  stranger  it  will  not  reduce  the  prior  devise  to  an  estate 
tail,  and  hence  the  second  limitation  can  only  take  effect  as 
an  executory  devise.2  The  second  point  is  whether  the  fail- 
ure means  an  indefinite  failure  of  issue,  i.e.,  that  the  second 
limitation  is  to  take  effect  at  any  future  time,  when  there 
shall  be  a  failure  of  heirs  in  the  direct  line  of  descent  from 
the  first  taker,  or  whether  it  refers  to  a  failure  of  issue 
within  any  particular  period,  as  at  the  death  of  the  first 
taker.  The  common-law  rule  was,  and  it  still  obtains  in 
the  absence  of  statutory  changes,  that  where  failure  of  issue 
was  made  the  contingency  upon  which  the  second  limitation 
was  to  vest,  without  any  express  reference  to  the  kind  of 
issue  meant,  or  where  the  kind  of  issue  could  not  be  deter- 
mined by  a  reference  to  the  context,  it  was  an  indefinite 
failure  of  issue,3  which,  as  will  be  shown  in  a  subsequent 

1  2  Washb.  on  Real  Prop.  699 ;  2  Prest.  Abst.  120 ;  Fearne  Cont.  Rem.  423, 
424.     See  ante,  sects.  49,  398. 

2  Grumble  v.  Jones,  11  Mod.  207;  Badger  v.  Lloyd,  1  Ld.  Raym.  526;  s.  c, 
1  Salk.  233;  Att'y-Gen.  v.  Gill,  2  P.Wms.  369;  Preston  v.  Funnell,  Willes, 
165;  Sears  v.  Russell,  8  Gray,  93;  Terry  v.  Briggs,  12  Mete.  22.  But  see 
ante,  sect.  538,  notes. 

■  Cole  v.  Goble,  13  C.  B.  445;  Pleydell  v.  Pleydell,  1  P.  Wms.  748;  Wil- 
liamson v.  Daniel,  12  Wheat.  568;  Riggs  v.  Sally,  15  Me.  408;  Burroughs  v. 
Poster,  6  R.  I.  534 ;  Brattleboro'  v.  Mead,  43  Vt.  556 ;  Nightingale  v.  Burrill, 

427 


§    542  EXECUTORY   DEVISES.  [PART   II. 

paragraph,  would  make  the  second  limitation  good,  if  it 
could  take  effect  as  a  remainder  after  an  estate  tail,  as  above 
explained,1  and  void,  if  it  could  only  take  effect  as  an  exec- 
utory devise.2  The  tendency  in  this  country  at  the  present 
time  is  to  change  this  rule  of  construction,  by  statute  or  by 
judicial  legislation,  wherever  possible,  so  that  a  failure  of 
issue  would  mean  a  failure  upon  the  death  of  the  first  taker .a 

15  Pick.  104;  Jackson  v.  Billinger,  18  Johns.  368;  Miller  v.  Macomb,  2ft 
Wend.  229;  Moore  v.  Rake,  26  N.  J.  L.  574;  Den  v.  Small,  20  N.  J.  L.  151; 
Kleppner  v.  Laverty,  70  Pa.  St.  70 ;  Allen  v.  Henderson,  49  Pa.  St.  333 ;  Inger- 
soll's  Appeal,  86  Pa.  St.  240;  Newton  v.  Griffith,  1  Har.  &  G.  Ill ;  Hallett  v. 
Pope,  3  Har.  542;  Torrance  v.  Torrance,  4  Md.  11;  Tinsley  v.  Jones,  13 
Gratt.  289;  Rice  v.  Sadderwhit,  1  Dev.  &  B.  Eq.  69;  Mazych  v.  Vanderhost, 
1  Bailey  Eq.  48;  Cox  v.  Buck,  5  Rich.  604;  Lillibridge  v.  Ross,  31  Ga.  730; 
Haraner  v.  Hamner,  3  Head,  398;  Voris  v.  Sloan,  68  111.  588;  Chism  v.  Wil- 
liams, 29  Mo.  288.  A  more  liberal  rule  prevailed  in  respect  to  personal  prop- 
erty and  chattel  interests  in  real  property,  and  very  slight  evidence  was 
sufficient  to  make  the  "  failure  of  issue  "  mean  a  definite  failure.  Allender  v. 
Sussan,  33  Md.  11 ;  3  Am.  Rep.  171 ;  Biscoe  v.  Biscoe,  6  Gill  &  J.  232;  Dav- 
idge  v.  Chaney,  4  Har.  &  McH.  393 ;  Morehouse  v.  Cotheal,  22  N.  J.  L.  430 ; 
Cadworth  v.  Thompson,  3  Desau.  256.  In  Brummet  v.  Barber,  2  Hill  (S.  C.) 
543,  Judge  O'Neall  says :  "  Although  there  is  no  such  positive  and  substantial 
legal  distinction,  yet  there  is  no  doubt  that  the  court  is  not  so  strictly  bound 
down  to  an  artificial  rule  of  construction  in  personal  as  in  real  estate,  and  that 
in  the  former  they  will  lay  hold  of  words  to  tie  up  the  generality  of  the  ex- 
pression 'dying  without  issue'  and  confine  it  to  dying  without  issue,  living  at 
the  time  of  the  first  taker's  death,  which  would  not  have  that  effect  in  the  lat- 
ter." But  before  declaring  the  term  "  failure  of  issue,"  or  "  dying  without 
issue,"  to  mean  an  indefinite  failure  of  issue,  the  whole  will  must  be  scanned, 
in  order  to  discover  the  intention  of  the  testator.  The  common  law,  however, 
required  clear  proof  of  a  contrary  intention  to  overcome  the  ordinary  pre- 
sumption of  law  in  favor  of  its  being  an  indefinite  failure  of  issue.  See  cases 
cited,  supra.  In  Chism  v.  Williams,  29  Mo.  288,  Judge  Napton  says:  "The 
question  is,  conceding  that  the  words  '  dying  without  issue '  mean  an  indefinite 
failure  of  issue,  are  there  other  words  which,  of  themselves,  and  in  despite  of 
this  general  manifestation  of  intention  to  keep  the  property  indefinitely  in  the 
descendants  of  the  first  taker,  point  incontestably  and  unequivocally  to  the 
death  of  the  first  taker  as  the  period  contemplated  by  the  testator  when  the 
limitation  over  should  take  effect." 

1  See  ante,  sect.  538,  and  notes. 

2  See  post,  sect.  544. 

3  Such  is  the  statutory  rule  in  Alabama,   California,   Georgia,  Kentucky, 
Maryland,   Michigan,  Minnesota,  Mississippi,  Missouri,   New  Jersey,   New 

428 


CH.  XIV.]  EXECUTORY   DEVISES.  §    542 

And  it  may  be  stated  as  a  general  proposition  that  in  the 
other  States  the  courts  are  receding  from  their  former  strict 
construction  in  favor  of  its  being  an  indefinite  failure  of 
issue,  so  that,  whenever  it  is  possible  to  gather  together 
sufficient  circumstances  to  establish  the  intention  to  limit 
upon  a  definite,  instead  of  an  indefinite,  failure  of  issue,  the 
courts  will  readily  do  so,  sometimes  availing  themselves  of 
very  slight  circumstances  in  order  to  reach  the  conclusion 
which  is  most  favorable  to  the  validity  of  the  devise.  For 
example,  in  a  devise  to  Thomas  and  his  heirs,  and  if  he  die 
without  issue,  living  "William,  then  to  William,  the  devise 
was  held  to  refer  to  a  failure  of  issue  during  the  life  of 
William.1  So,  also,  where  the  contingency  was  that  the  per- 
son should  die,  leaving  no  issue  behind  him,  or  where  the 
second  limitation  was  only  a  life  estate,  it  was  held  to  mean 
a  definite  failure  of  issue.2 

York,  North  Carolina,  South  Carolina,  Tennessee  and  Virginia.  2  Jar.  on 
Wills  (5lh  Am.  ed.),  340;  Worrill  v.  Wright,  25  G-a.  659;  Armstrong  v.  Arm- 
strong, 14  B.  Mon'.  333 ;  Powell  v.  Brandon,  24  Miss.  343 ;  Faust  v.  Birner,  30 
Mo.  414;  Condicty.  King,  13  N.  J.  375. 

1  Pells  v.  Brown,  Cro.  Jac.  590. 

2  Porter  v.  Bradley,  3  T.  K,  143 ;  Trafford  v.  Boehm,  3  Atk.  440 ;  Forth  v. 
Chapman,  1  P.  Wms.  663;  Ide  v.  Ide,  5  Mass.  500;  Griswold  v.  Greer,  18  Ga. 
515.  Where  the  limitation  over  is  to  others,  or  to  the  surviving  children  or 
issue  of  the  first  taker,  a  definite  failure  of  issue  is  generally  presumed 
to  be  intended.  Jackson  v.  Chew,  12  Wheat.  153;  Brightman  v.  Bright- 
man,  100  Mass.  238;  Clark  v.  Terry,  34  Conn.  176;  Lion  v.  Burtiss,  20 
Johns.  483 ;  Cutter  v.  Doughty,  23  Wend.  513;  Bedford's  Appeal,  40  Pa.  St.  18 ; 
Den  v.  Allaire,  20  N.  J.  L.  15 ;  Ingersoll's  Appeal,  86  Pa.  St.  240 ;  Threadgill  v. 
Ingram,  1  Ired.  L.  577  ;  McCorkle  v.  Black,  7  Rich.  L.  407 ;  Russ  v.  Russ,  9  Fla» 
1 05 ;  Deboe  v.  Lowen,  8  B.  Mon.  616 ;  Williams  v.  Turner,  10  Yerg.  289 ;  Lamb- 
din  v.  Lambdin,  12  Smed.  &  M.  31.  The  tendency  is  to  construe  "  die  without 
leacing  issue,"  or  "leaving  no  issue,"  as  meaning  a  definite  failure  of  issue. 
Maurice  v.  Maurice,  43  N.  Y.  303;  Eaton  v.  Straw,  18  N.  H.  321 ;  Fairchildu. 
Crane,  13  N.  J.  Eq.  105;  Hill  v.  Hill,  74  Pa.  St.  173;  15  Am.  Rep.  545;  Nichol- 
son v.  Bettle,  67  Pa.  St.  386 ;  Clapp  v.  Fogleman,  1  Dev.  &  B.  Eq.  466 ;  Carr 
r.Jeannett,  2McCord,  66;  Perry  v.  Log? :.,  5  Rich.  Eq.  202;  Harris  v.  Smith, 
16  Ga.  545;  Daniel  v.  Thompson,  14  B.  Mon.  662;  Edwards  v.  Bibb,  43  Ala. 
666.  Contra,  Malcolm  v.  Malcolm,  3  Cush.  472 ;  Haldeman  v.  Haldeman,  40  Pa. 
St  29;  Patterson  v.  Ellis,  11  Wend.  289;  Tongue  v.  Nutwell,  13  Md.  415.     So, 

429 


§    543  EXECUTORY    DEVISES.  [PART    II. 

§  543.  Same — In  deeds.  —  The  rules  of  construction, 
as  stated  above,  although  in  the  main  referable  to  springing 
and  shifting  uses  created  by  deed,  must  in  their  application 
to  these  limitations  receive  the  further  restriction  that  there 
are  sufficient  technical  words  of  limitation  present  to  con- 
vert the  prior  limitation  into  a  fee  tail.  If  the  first  limita- 
tion is  expressly  an  estate  in  fee  simple,  the  second  limita- 
tion over  upon  failure  of  issue  of  the  first  taker  would  not 
convert  the  former  into  an  estate  tail,  although  the  same 
limitation  in  a  will  would  have  had  that  effect.  Thus  a  con- 
veyance to  A.  and  his  heirs,  and  if  he  should  die  without 
issue,  then  over,  A.  would  take  a  fee  upon  condition,  in- 

also,  was  a  definite  failure  of  issue  held  to  be  intended  by  the  clause  dying 
"without lawful  heirs,"  or  "without  lawful  heirs  of  hisbodj-."  Abbott  v.  Essex 
Co.,  18  How.  202;  Hudson  v.  Wadsworth.  8  Conn.  359;  Seibert  v.  Butz,  9 
Watts,  490;  Fahoneyv.  Holsinger,  65  Pa.  St.  SS8;  Berg  v.  Anderson,  72  Pa. 
St.  87;  Timberlake  v.  Graves,  6  Munf.  174;  Keating  v.  Reynolds,  1  Bay,  80  j 
Jones  v.  Miller.  13  Ind.  337.  And  see  generally  Theol.  Seminary  v.  Kellogg, 
16  N.  Y.  84;  DuBois  v.  Kay,  35  N.  Y.  162;  Diehl  v.  King,  6  Serg.  &  R.  32 •„ 
Downing  v.  Wherrin,  19  N.  H.  9;  Hall  v.  Chaffee,  14  N.  H.  215;  Simmoiidsr. 
Simmonds,  112  Mass.  157;  Wilson  v.  Wilson,  32  Barb.  328;  Garland  v.  Watt, 
4  Ired.L.  287;  Jones  v.  Sothoron,  10  Gill  &  J.  187;  Bullock  v.  Seymour  33 
Conn.  290;  Badger  v.  Hardin,  6  Rich.  L.  149;  Forman  v.  Troup,  30  Ga.496; 
Moore  v.  Howe,  4  B.  Mon.  200;  Brashear  v.  Macey,  3  J.  J.  Marsh.  91 ;  Parish  v. 
Ferris,  6  Ohio  St.  5G3 ;  Niles  v.  Gray,  12  Ohio  St.  320.  On  the  other  hand,  a 
devise  to  sons,  but  if  they  die  without  issue,  then  "to  my  surviving  children," 
has  been  held  to  mean  an  indefinite  failure  of  issue.  See  Lapsley  v.  Lapsley, 
9  Pa.  St.  130;  Clark  v.  Baker,  3  Serg.  &  R.  470 ;  Doyle  v.  Mullady,  33  Pa.  St. 
264;  Den».  Cook,  7  N.J.  L.  41  ;  Holcombe  v.  Lake,  25  N.  J.  L.  605;  Bells  v. 
Gillespie,  5  Rand.  273;  Stevenson  v.  Jacocks,  3  Murph.  558.  So,  also,  to  A. 
and  B.,  their  heirs  and  assigns,  but  if  they  die  without  issue,  then  over.  Silli- 
bridgeu.  Adie,  1  Mason,  224.  The  truth  is,  the  old  rule,  by  which  these  ques- 
tions were  determined,  was  really  arbitrary,  and  in  most  cases  directly  contrary 
to  the  real  intention  of  the  testator,  although  the  courts  professed  to  follow  his. 
intention  as  it  appeared  upon  the  will.  For  example,  in  the  case,  cited  above, 
of  a  devise  to  two  or  more  sons,  and  if  they  should  die  without  issue,  "then 
to  my  surviving  children,"  an  indefinite  failure  of  i.-sue  was  held  to  be  in- 
tended ;  whereas  the  most  natural  and  rational  construction  was,  that  the  tes- 
tator intended  his  surviving  children  to  take,  in  the  event  or  the  death  of  one 
of  them  without  issue.  Those  States  which  have  by  statute  cut  loose  from  *L~;-e 
common-law  rules  have  acted  wisely. 

430 


CH.  XIV.]  EXECUTORY    DEVISES.  §    544 

stead  of  an  estate  tail,  as  he  would  have  done  if  the  limita- 
tion had  been  by  devise.1  On  the  other  hand,  the  question 
as  to  the  definite  or  indefinite  failure  of  issue  is  more  liber- 
ally determined  when  it  refers  to  shifting  uses  than  in  the 
case  of  executory  devises,  because  of  the  common  disincli- 
nation of  the  courts  to  construe  the  will  as  to  disinherit  the 
heir  at  law.2  The  necessity  of  determining  what  is  the  exact, 
effect  of  a  limitation  upon  failure  of  issue  lies  in  the 

§  544.  Doctrine  of  perpetuity.  —  We  have  seen  that  the 
common-law  restrictions,  as  to  the  kinds  and  classes  of  es- 
tates which  might  be  carved  out  of  a  fee,  do  not  apply  ta 
executory  devises  or  springing  and  shifting  uses.  As  a  con- 
sequence, if  there  was  no  restraint  as  to  the  time  when  an 
executory  devise  or  future  use  should  vest  in  possession, 
lands  might  be  so  conveyed  to  uses,  or  by  way  of  executory 
devises,  that  the  power  of  alienation  might  be  indefinitely 
suspended,  thereby  preventing  that  change  of  ownership  in 
lands  which  has  ever  been  considered  so  salutary  to  the  wel- 
fare of  the  country.  The  courts,  therefore,  at  a  very  early 
day,  laid  down  the  rule  that  executory  interests,  whether  by 
way  of  use  or  devise,  must,  in  order  to  be  valid  limitations, 
take  effect  in  possession  within  a  life  or  lives  in  being,  and 
twenty-one  years  thereafter.3     To  this  was  added  the  nine 

1  Coltman  v.  Senbouse,  Pollexf.  536;  Daviess  v.  Speed,  2  Salk.  G75;  Abra- 
ham v.  Twigg,  Cro.  Eliz.  478;  Hall  v.  Priest,  6  Gray,  18;  2  Washb.  on  Real 
Prop.  711,  712.  It  is  apparent,  from  the  small  number  of  cases  cited,  that 
this  question  very  rarely  arises  in  respect  to  springing  and  shifting  uses. 

2  2  Washb.  on  Real  Prop.  711 ;  Forth  v.  Chapman,  1  P.  Wins.  663 ;  Hall 
v.  Priest,  6  Gray,  18. 

3  2  Washb.  on  Real  Prop.  701,  702.  This  limit  of  the  time  within  which 
an  executory  interest  must  take  effect  in  possession  to  be  valid  was,  no  doubt, 
suggested  by  the  fact  that  an  estate  tail,  according  to  the  English  law,  could 
not  be  made  inalienable  for  any  longer  period.  For  example,  A.  would  settle 
his  lands  to  himself  for  life,  remainder  to  his  eldest  son  in  tail  male,  remainder 
to  his  second  son  in  tail  male,  remainders  over.  Since  an  estate  tail  could  be 
barred  by  common  recovery,  A.,  in  settling  his  estate  in  this  manner,  could 
only  make  the  lands  inalienable  until  his  eldest  son  was  born  and  became  of 

431 


§    544  EXECUTORY    DEVISES.  [PART   II. 

months  required  by  nature  for  the  gestation  of  a  child  en 
ventre  sa  mere,  when  posthumous  children  were  declared 
capable  of  taking  future  estates.1  If  the  executory  interest 
could,  by  any  possibility,  take  effect  beyond  that  period,  it 
was  void,  even  though  it  afterwards  did,  as  a  matter  of  fact, 
take  effect  within  the  period.  It  must  be  absolutely  certain 
to  vest  within  that  period,  if  at  all,  in  order  to  be  valid.2 
If  the  future  limitations  be  void  for  this  reason,  it  leaves 
the  prior  limitation,  if  any,  free  from  the  condition,  mak- 
ing what  was  a  conditional  estate  an  absolute  one.3  A 
limitation,  void  because  it  offends  the  doctrine  of  perpe- 
tuity, will  be  void  altogether,  and  cannot  beheld,  under  the 
cy  pres  rule  of  construction,  to  be  good  as  to  that  part  which 
keeps  within  the  period  of  perpetuity,  and  void  only  as  to 
the  excess.4  But  if  the  limitation  is  dependent  upon  one  of 
two  events,  one  of  which  must  happen  within  the  period  of 

age.  It  would,  therefore,  at  the  farthest,  remain  inalienable  during  his  life 
and  twenty-one  years  thereafter,  viz.:  a  life  or  lives  in  being  and  twenty-one 
years  thereafter.  This  doctrine  as  to  the  probable  origin  of  the  doctrine  of 
perpetuity  is  supported  by  Mr.  AVashburn  (2  Wasbb.  on  Real  Prop.  702); 
and  it  might  be  inferred  from  the  discussion  by  Mr.  Williams  of  estates  tail, 
marriage  settlements,  and  the  doctrine  of  perpetuity  in  the  same  connec- 
tion (see  Williams  on  Real  Prop.  50,  51),  that  he  also  had  in  mind  the  idea  of 
their  common  origin. 

1  2  Washb.  on  Real  Prop.  702,  703;  Williams  on  Real  Prop.  319. 

2  Purefoy  v.  Rogers,  2  Saund.  388 ;  Nottingham  v.  Jennings,  1  Salk.  233 ; 
Duke  of  Norfolk's  Case,  2  Chanc.  Cas.  1 ;  Beard  v.  Westcott,  5  B.  &  Aid.  801 ; 
Prop'rs  Battle  Sq.  Church  v.  Grant,  3  Gray,  146 ;  iSears  v.  Russell,  8  Gray,  100 ; 
Jackson  v.  Phillips,  14  Allen,  572;  Wood  v.  Griffin,  46  N.H.  234;  Andrews  v. 
Jackson,  16  Johns.  399;  Donahues.  McNichols,  61  Pa.  St.  78;  Andrews  v. 
Roye,  12  Rich.  542 ;  St.  Amour  v.  Rivard,  2  Mich.  294 ;  Mandlebaum  a.  Mc- 
Donnell, 29  Mich.  78 ;  18  Am.  Rep.  61. 

3  Tud.  Ld.  Cas.  361 ;  Nottingham  v.  Jennings,  1  Salk.  233;  Beard  v.  West- 
cott, 5  B.  &  Aid.  801 ;  Jackson  v.  Noble,  2  Kee,  590 ;  Gatenby  d.  Morgan,  1  Q. 
B.  D.  685 ;  Proprs.  Brattle  Sq.  Church  v.  Grant,  3  Gray,  142 ;  Sears  v.  Russell, 
8  Gray,  100;  Drummond  v.  Drummond,  26  N.  J.  Eq.,  234;  Philadelphia  v. 
Girar-1,45  Pa.  St.  27;  Shephard  ».  Shephard,  2  Rich.  Eq.  142. 

4  Leak  v.  Robinson,  2  Meriv.  362 ;  Fox  v.  Porter.  6  Sim.  4S5  ;  Evers  v.  Challis, 
7  H.  L.  Cas.  555;  Jackson  v.  Phillips,  14  Allen,  572.  Still  there  is  a  cia-s  nf 
cases,  in  which  parts  of  a  testator's  will  will  be  carried  into  effect,  while  other 
parts,  which  are  void  on  account  of  remoteness,  will  be  discarded.     But  this 

432 


CH.  XIV.]  EXECUTORY   DEVISES.  §    544 

perpetuity,  while  the  other  is  remote,  it  will  be  a  good  lim- 
itation, except  that  it  will  vest  only  upon  the  happening  of 
the  event  which  is  not  remote,  while  the  other  condition  is 
void  and  has  no  effect  upon  the  devise.1  The  greatest  diffi- 
culty is  experienced  in  applying  this  rule  against  perpetuity 
to  limitations  upon  failure  of  issue.  If  the  limitation  can- 
not be  construed  as  a  remainder  after  an  estate  tail,  or  as 
an  executory  devise  to  take  effect  upon  a  definite  failure  of 
issue,  it  would  be  void,  since  an  executory  devise  after  an 
indefinite  failure  of  issue  cannot  always  take  effect  within 
the  period  of  perpetuity.2  Since  estates  tail  cannot  be 
created  out  of  a  term  of  years,  the  courts  are  inclined  to 
construe  a  failure  of  issue  in  the  devise  of  a  term  to  mean  a 
definite  failure  of  issue,  referable  to  the  death  of  the  ances- 
tor, upon  the  failure  of  whose  issue  the  future  limitation  is 
to  vest.  Otherwise  such  future  limitation  could  never  take 
effect,  since  it  would  always  offend  the  rule  against  perpe- 
tuities.3 It  is  also  difficult  at  times  to  determine  whether  in 
the  case  of  an  executory  devise  to  a  class,  when  some  can- 
not take  because  too  remote,  the  whole  devise  is  void  as 

will  be  done,  only  when  substantial  justice  will  be  done  to  all  parties  con- 
cerned, and  when  the  paramount  or  general  intention  of  the  testator  would 
then  be  carried  into  effect.  See  Arnold  v.  Congreve,  1  Russ.  &  Myl.  279 ; 
Carver  v.  Bowles,  2  Russ.  &  Myl.  306 ;  Church  v.  Kemble,  5  Sim.  522. 

1  Fowler  v.  Depan,  26  Barb.  224;  Schettlerv.  Smith,  41  N.  Y.  328;  Arm- 
strong?;. Armstrong,  14  B.  Mon.  333;  Burrill  v.  Boardman,  43  N.  Y.  254. 

2  Forth  v.  Chapman,  1  P.  Wms.  663 ;  Doe  v.  Ewart,  7  A.  &  E.  636 ;  Terry  v. 
Briggs,  12  Mete.  22  ;  Hall  v.  Priest,  6  Gray,  18  ;  Anderson  v.  Jackson,  16  Johns. 
382 ;  Dallam  v.  Dallam,  7  Har.  &  J.  220 ;"  Hall  v.  Chaffee,  14  N.  H.  221 ;  Carry 
v.  Sims,  11  Rich.  490;  Black  v.  McAuley,  5  Jones  375;  Kay  v.  Scates,  37  Pa. 
St.  39 ;  Bramlet  v.  Bates,  1  Sneed,  554 ;  Moore  v.  Howe,  4  B.  Mon.  199 ;  Gray  v. 
Bridgeforth,  33  Miss.  312.  As  to  when  such  a  limitation  would  be  a  re- 
mainder after  an  estate  tail,  instead  of  an  executory  devise  after  a  fee,  see 
ante  sect.  538.  As  to  when  a  definite,  or  an  indefinite  failure  of  issue  is  in- 
tended, see  ante  sects.  542,  543. 

3  Forth  v.  Chapman,  1  P.  Wms.  663 ;  Hall  v.  Priest,  6  Gray,  18 ;  Allender's 
Lessee  v.  Sussan,  33  Md.  11 ;  3  Am.  Rep.  171 ;  Morehouse  v.  Cotheal,  22  N.  J. 
L.  430;  Biscoe  v.  Biscoe,  6  Gill  &  J.  232;  Brummet  v.  Barber,  2  Hill;  ».<?., 
543;  Moore  v.  Howe,  4  B.  Mon.  199. 

28  433 


§    545  EXECUTOKY  DEVISES.  [PART   II, 

against  perpetuity,  or  only  that  part  which  offends.  The 
determination  of  the  question  depends  upon  the  ability  to 
separate  the  good  from  the  bad,  and  at  the  same  time  pre- 
serve the  intention  of  the  testator.  If  this  can  be  done, 
and  the  parties  who  cannot  take  are  not  thereby  prejudiced, 
then  only  that  part  of  the  devise  will  be  void  which  is  too 
remote,  while  the  devise  will  be  upheld  and  carried  out  in 
favor  of  those  who  can  take.  If  the  partial  enforcement  of 
the  devise  will  work  an  injury  to  those  who  are  excluded, 
or  confer  upon  the  fortunate  ones  benefits,  not  intended  by 
the  testator,  the  whole  devise  will  then  be  void.1  In  this 
country  the  common-law  rule  of  perpetuity,  that  future  lim- 
itations must  vest  within  a  life  or  lives  in  being  and  twenty- 
one  years  thereafter,  still  generally  prevails,  although  in 
some  of  the  States  the  period  has  been  shortened  by  statute. 
The  most  important  change  was  made  in  New  York,  where 
the  period  was  limited  to  two  lives  in  being.2 

§  545.  Rule    against  accumulation  of   profits. — It  is 

very  often  desirable  that  testators  should  have  the  right  to 
direct  that  the  profits  of  their  estates  should  be  allowed  to 
accumulate  for  a  certain  time  before  being  distributed  among 
the  persons  designated  in  the  will.  At  common  law  there 
was  no  restriction  as  to  the  time,  within  which  the  profits 
may  be  directed  to  accumulate,  except  the  rule  of  perpetuity. 
As  long  as  the  accumulation  was  kept  within  the  period  of 
perpetuity  it  was  a  valid  limitation.  This  is  the  general 
rule  of  law  in  this  country  at  the  present  day,3  but  in  Eng- 

1  James  ».  Wynford,  1  Sraale  &  G.  40,  Griffith  v.  Pownall,  13  Sim.  393 ; 
Cattlinu.  Brown,  11  Hall,  372;  Webster  v.  Boddington,  26  Beav.  128;  Evere 
v.  Challis,  7  H.  L.  Cas.  545 ;  Lowry  v.  Muldrow,  8  Rich.  Eq.  241.  See  2 
Washb.  Real  Prop.  727-730. 

2  1  Rev.  Stat.  N.  Y.  723,  sect.  15;  Jennings  v.  Jennings,  7  N.  Y.  547;  Levy 
v.  Levy,  33  N.  Y.  129 ;  Manice  v.  Manice,  43  N.  Y.  303. 

3  2  Washb.  on  Real  Prop.  730.  In  New  York  and  Pennsylvania  statutes  have 
been  passed,  similar  in  their  provisions  to  the  English  statute  mentioned  in 
the  text.  1  Rev.  Stat.  N.  Y.  726,  sect.  37;  Manice  v.  Manice,  43  N.  Y.  305; 
Pard.  Dig.  (Pa.  St.  Laws)  853. 

4;;4 


CH.  XIV.]  EXECUTORY    DEVISES.  §    546 

gland,  and  in  some  of  the  States,  such  accumulations  are 
prohibited  for  a  longer  period  than  the  life  of  the  grantor 
and  twenty-one  years  thereafter,  or  the  minority  of  the 
person  or  persons  who  are  to  take.1 

§  546.  Executory  devises  of  chattel  interests.  — At  com- 
mon law  a  remainder  could  not  be  limited  in  a  chattel  in- 
terest after  a  prior  limitation  for  life,  or  for  any  indefinite 
period  which  would  be  a  freehold  estate,  if  carved  out  of  a 
fee.  Such  limitations  would  be  void  as  common-law  estates.2 
Nor  can  an  estate  tail  be  created  out  of  a  term,  the  statute 
de  donis  referring  only  to  tenements,  estates  of  which  ten- 
ure can  be  predicated.  A  devise  of  a  chattel  interest  to  one 
and  the  heirs  of  his  body  would  be  the  devise  of  an  absolute 
estate.3  But  future  limitations  were  at  an  early  day  per- 
mitted to  be  created  in  chattel  interests  to  take  effect  as 
executory  devises,  and  it  matters  not  whether  there  is  or  is 

1  Statute  39,  40  Geo.  III.  ch.  98;  2  Wnshb.  on  Real  Prop.  731 ;  Williams 
on  Real  Prop.  320.  This  statute  was  passed  in  consequence  of  the  foolish 
and  vain  ambition  of  a  man,  named  Thelluson,  to  make  the  later  generations 
of  his  family  wealthy  and  powerful,  by  providing  in  his  will  for  the  accumul- 
ation of  the  profits  during  the  lives  of  his  then  existing  heirs.  If  it  had  been 
carried  out,  the  estate  would  have  amounted  to  £1'.>,000,000,  and  it  was  then 
to  be  distributed  among  two  or  three  persons.  The  will  attracted  widespread 
attention,  and,  it  being  thought  dangerous  to  permit  the  accumulation  of  such 
vast  wealth  in  the  hands  of  private  persons,  as  well  as  cruel  and  unjust  to  the 
immediate  heirs,  an  attempt  was  made  to  break  the  will.  See  Thelluson  v. 
Woodford,  1  B.  &  P.  N.  R.  396 ;  s.  c,  4  Ves.  227.  But  the  court  declared  the 
limitation  valid,  since  it  did  not  break  the  rule  against  perpetuities.  The  will 
provided  for  the  accumulation  of  the  profits  of  the  estate  during  the  lives  of 
all  his  children,  grandchildren  and  great-grandchildren  living  at  his  death, 
and  should,  at  the  death  of  the  last  survivor,  be  divided  up  among  certain 
descendants  who  would  then  be  in  being.  It  will  be  apparent  that  the  tes- 
tator kept  within  the  rule  against  perpetuity. 

2  2  Washb.  on  Real  Prop.  722  ;  Fearne  Cont.  Rem.  401 ;  Tissen  v.  Tissen, 
1  P.  Wms.  500;  Manning's  Case,  8  Rep.  95;  Smith  v.  Bell,  6  Pet.  68;  Merrill 
v.  Emery,  10  Pick.  507  ;  Gillespie  v.  Miller,  5  Johns,  ch.  21 ;  Cooper  v.  Cooper, 
1  Brev.  355. 

s  2  Washb.  on  Real  Prop.  723;  Fearne  Cont.  Rem.  461,  463;  Lovies'  Case, 
10  Rep.  87 :  Doe  v.  Lyde,  1  T.  R.  593,  Powell  v.  Glenn,  21  Ala.  458. 

435 


§    546  EXECUTORY    DEVISES.  [PART    II. 

not  a  preceding  limitation,  or  whether  the  second  limitation 
takes  effect  in  derogation  of  the  prior  limitation.  In  each 
case  the  future  limitation  is  construed  as  an  executory  de- 
vise ;  and  the  rules  here  laid  down  for  the  government  of 
the  other  two  classes  of  executory  devises  are  in  the  main 
applicable  to  these.1  The  only  restriction  upon  the  power 
to  create  a  future  estate  in  a  chattel  lies  in  the  nature  of  the 
chattel  itself.  If  it  is  in  its  nature  capable  of  sustaining  a 
present  and  a  future  enjoyment,  a  future  limitation  will  be 
good.  But  if  the  present  enjoyment  of  the  chattel  involves 
a  consumption  of  the  thing  itself,  then  of  necessity  any  fu- 
ture limitation  would  be  void.2 

1  Tissen  v.  Tissen,  1  P.  Wins.  500 ;  Manning's  Case,  8  Rep.  95 ;  Upwell  v. 
Halsey,  1  P.  Wms.  651 ;  Smith  v.  Bell,  6  Pet.  68 ;  Merrill  v.  Emery,  10  Pick. 
607;  Gillespie  v.  Miller,  5  Johns.  Ch.  21;  Moffatt  ».  Strong,  10  Johns.  12; 
Keene's  Appeal,  64  Pa.  St.  273  ;  Maulding  v.  Scott,  13  Ark.  88 ;  2  Prest.  Abst. 
4;  Fearne  Cont.  Rem.  402;  2  Bla.  Com.  174;  2  Washb.  on  Real  Prop.  724. 

2  Att'y-Gen.  v.  Hall,  Fitzg.  314;  Bull  v.  Kingston,  1  Meriv.  314;  2  Washb. 
on  Real  Prop.  724.  But  see  Upwell  v.  Halsey,  1  P.  Wms.  652;  Smith  v.  Bell, 
6  Pet.  68 ;  Rubey  v.  Barnett,  12  Mo.  1. 

436 


CHAPTER  XV. 

POWERS. 

Section  558.  The  nature  of  powers  in  general. 

559.  Powers  of  appointment. 

560.  Kinds  of  powers. 

561.  Suspension  and  destruction  of  powers. 

562.  How  powers  may  be  created. 

563.  Powers  distinguished  from  estates. 

584.  Power  enlarging  the  interest,  with  which  it  is  coupled. 

565.  Who  can  be  donees. 

566.  By  whom  the  power  may  be  executed. 

567.  Mode  of  execution. 

568.  Who  may  be  appointees. 

569.  Execution  by  implication. 

570.  Excessive  execution. 

571.  Successive  execution. 

572.  Re  vocation  of  appointment. 

573.  Defective  executions  —  How  and  when  cured. 

574.  Non-executions. 

575.  Rules  of  perpetuity. 

576.  Rights  of  donee's  creditors  in  the  power. 

577.  The  rights  of  creditors  of  the  beneficiary. 

§  558.  The  nature  of  powers  in  general.  — A  power,  in 
the  most  comprehensive  sense  in  which  the  word  can  be 
used,  is  an  authority  conferred  upon  a  person  to  do  a  thing. 
But  in  its  present  application  it  signifies  an  authority  to 
dispose  of  property,  which  is  vested  either  in  the  person 
exercising  the  power,  or  in  some  other  person.  Under  this 
latter  signification  three  distinct  classes  of  powers  will  be 
recognized:  First,  statutory  powers;  second,  powers  of 
attorney;  and  third,  what  are  generally  called  powers  of 
appointment,  or  simply  powers.  A  statutory  power  is  one 
which  is  created  and  vested  in  a  person  by  legislative  enact- 
ment.    It  is  an  act  of  the  government ;  it  derives  its  au- 

437 


§    559  POWERS.  [part   II. 

thority  from  the  Legislature,  and  is  subject  to  the  same  rules 
of  interpretation  and  construction  as  statutes  in  general.1 
Powers  of  attorney  are  authorities  conferred  by  a  principal 
upon  an  agent  to  perform  certain  acts  in  the  manner  indi- 
cated in  the  instrument  of  authority.  The  exercise  of  this 
power  is  the  act  of  the  principal  through,  or  by  means  of, 
the  agent.  It  is  exercised  in  the  name  of  the  principal,  and 
requires  as  much  formality  in  execution  as  if  the  principal 
were  acting  himself.  This  class  of  powers,  so  far  as  they 
pertain  to  the  law  of  real  property,  will  be  more  specifically 
explained  in  subsequent  pages.2  In  both  classes  of  powers 
just  mentioned,  statutory  powers  and  powers  of  attorney, 
the  legal  title  to  the  property  thus  disposed  of  is  conveyed, 
not  by  the  creation  of  the  power,  but  by  the  deed  of  con- 
veyance made  in  pursuance  of  the  power.  The  title  remains 
in  the  original  owner,  unaffected  by  the  creation  of  the 
power,  until  its  execution.  It  is  divested  only  when  the  deed 
of  conveyance  is  executed  and  delivered.3 

§  559.  Powers  of  appointment.  —  The  third  class  of 
powers,  enumerated  above,  is  what  concerns  us  at  present, 
viz.:  powers  of  appointment.  These  powers,  which  are 
generally  known  simply  as  powers,  are  modes  of  disposition 
of  property,  which  operate  under  the  Statute  of  Uses  or  the 
Statute  of  Wills.  The  creation  of  the  power  invests  in  the 
person  to  whom  it  is  granted,  called  the  donee,  a  present 
indefeasible  executory  interest  in  the  land.  It  is  a  right  to 
convey  the  land,  and  cannot  be  revoked  by  the  donor.  The 
common  law  knows  of  no  class  of  powers  which  will  in 
themselves,  by  their  very  creation,  convey  an  interest  in 

1  Baltimore  v.  Porter,  18  Md.  284.  See  also,  Markham  v.  Porter,  33  Ga.  508; 
In  the  Matter  of  Bull,  45  Barb.  334;  Leak  v.  Richmond  Co.,  64  N.  C.  132. 

»  See  post,  sects.  805,  806. 

3  2  Washb.  on  Real  Prop.  610;  1  Sugden   on  Pow.  (ed.  1866),  1,  171,  174; 
3  Washb.  on  Real  Prop.  277-279. 
438 


CH.  XV.]  POWERS.  §    559 

real  property,  and  thus  encumber  the  title  thereof.1  There 
are  only  two  modes  of  creating  such  a  power.  One  is  by 
way  of  a  use.  The  power  in  such  a  case  is  "  a  right  to  limit 
a  use."  (Kent.)  In  the  exercise  of  the  power  a  use  is 
created,  which  is  immediately  executed  into  a  legal  estate 
by  the  Statute  of  Uses  in  the  person  to  whom  the  use  has 
been  limited,  and  who  is  called  the  appointee.  The  estates 
created  by  means  of  these  powers  are  either  contingent, 
springing  or  shifting  uses,  according  to  their  relation  with 
the  other  limitations  in  the  deed  or  will  creating  the  power, 
and  are  governed  by  the  same  rules  of  construction.2  An 
ordinary  contingent  use  vests  upon  the  happening  of  an  un- 
certain event.  In  the  case  of  an  estate  created  by  means  of 
a  power  of  appointment,  the  uncertain  event  is  the  exercise 
of  the  power. ?  The  other  mode  of  creating  this  kind  of 
power  is  by  will  under  the  Statute  of  Wills.  The  estate  so 
created  is  an  executory  devise,  deriving  its  force  and  effect 
from  the  will  itself.  All  powers  in  a  will  operate  under  the 
Statute  of  Wills,  except  where  it  takes  the  form  of  a  power 
to  limit  a  use,  and  there  is  a  special  seisin  raised  by  the  will 
to  support  the  use  thus  limited.  Then  it  operates  under 
the  Statute  of  Uses,  as  a  contingent  or  future  use.4  Whether 
the  power  be  created  by  deed  or  by  will,  the  appointee's 
estate  will  have  the  same  characteristics  as  it  would  have 
had  if,  instead  of  the  power,  it  had  been  limited  in  the  in- 
strument creating  the  power.  And  in  order  to  determine 
the  rights  of  the  appointee,  and  the  validity  and  character 
of  the  estate  appointed  to  his  use,  it  must  be  tested  by  the 

1  Sugden  on  Pow.  (ed.  1856),  4;  Co.  Lit.  237  a.  See  contra,  Chance  on 
Pow.  sects.  5-12. 

2  Co.  Lit.  271  b,  n.  231 ;  Bac.  LawTr.  314;  1  Spence  Eq.  Jur.  455;  4  Kent's 
Com.  334;  Williams  on  Real  Prop.  394. 

8  Co.  Lit.  271  b,  Butler's  note,  231 ;  Tud.  Ld.  Cas.  264 ;  Sheph.  Touch.  529 ; 
Williamson  on  Real  Prop.  294;  Rush  v.  Lewis,  21  Pa.  St.  72;  Rodgers  v. 
Wallace,  5  Jones  L.  182. 

*  1  Sugden  (hi  Pow.  (ed.  1856)  240;  Prest.  Abst.  347. 

439 


§    560  POWERS.  [part  II. 

relation  it  would  bear  to  the  other  limitations  of  the  prop- 
erty, if  it  had  occupied  the  place  of  the  power  in  the  origi- 
nal instrument.  The  appointor  is  merely  an  instrument 
employed  to  limit  the  estate ;  the  appointee  is  in  by  the 
original  instrument,  which  creates  the  power.1  The  fore- 
going explanation  of  the  doctrine  of  powers  is  true  as  to 
this  country  generally,  with  the,  perhaps,  single  exception 
of  New  York.  In  that  State  all  powers,  heretofore  known 
as  operating  under  the  Statute  of  Uses  and  the  Statute  of 
Wills,  have  been  abolished,  and  only  certain  powers,  enu- 
merated in  the  statute,  can  now  be  created.  But  they  have 
received  at  the  hands  of  the  courts  of  that  State  practically 
the  same  construction  as  powers  in  other  States,  so  that 
what  is  subsequently  said  of  powers  of  appointment  is 
equally  applicable  to  powers  in  New  York,  the  only  differ- 
ence being  that  there  they  operate  under  the  statute  of  New 
York,  instead  of  the  old  English  Statutes  of  Uses  and  Wills, 
and  are  confined  to  certain  objects.2 

§  560.  Kinds  of  powers.  —  Powers  of  appointment  may 
be  conferred  upon  persons  having  an  interest  or  estate  of 
some  kind  in  the  land,  or  they  may  be  given  to  persons 
who  are  otherwise  altogether  strangers  to  the  property.  In 
the  latter  case  they  are  called  collateral  or  naked  powers  ; 
the  power  is  not  attached  to  any  present  estate,  and  the 
donee  possesses  the  mere  right  to  exercise  the  power.3  In 
the  former  case  the  power  is  either  appendant  or  in  gross, 

1  1  Sugden  on  Pow.  (ed.  1856),  171,  242;  Co.,  Lit.  271  b;  Butler's  note, 
231,  sect.  3,  pi.  4;  Gilbert  on  Uses,  127,  n;  4  Kent's  Cora.  337;  4  Cruise  Dig. 
220 ;  2  Washb.  Real  Prop.  636,  637 ;  Doolittle  v.  Lewis,  7  Jobns.  Ch.  45 ; 
Bringloe  v.  Goodson,  Bing.  N.  C.  726;  Roach  v.  Wadbani,  6  East,  289;  Do© 
v.  Britain,  2  B.  &  Aid.  93;  Mosley  v.  Mosley,  5  Ves.  256;  Bradish  v.  Gibbs, 
3  Johns.  Ch.  550. 

3  N.  Y.  Rev.  Stat.,  Art.  3,  sects.  86-148 ;  Hotchkiss  v.  Elting,  36  Barb.  38. 

s  Tud.  Ld.  Cas.  286 ;  Williams  on  Real  Prop.  294 ;  1  Sugden  on  Pow.  107 ; 
2  Washb.  on  Real  Prop.  639 ;  Bergen  v.  Bennett,  1  Caines'  Cas.  15 ;  Edwards 
v.  Slater,  Hard.  416. 

440 


CH.  XV.]  POWERS.  §    560 

according  to  its  relation  to  the  estate,  to  which  it  is  attached. 
Any  power  whose  execution  creates  an  estate,  which  issues 
partly  or  wholly  out  of  an  estate  vested  in  the  donee,  is  a 
power  appendant.  Thus,  where  a  tenant  for  life  has  the 
power  to  make  leases  in  possession,  which  are  to  continue 
until  their  natural  termination  independent  of  the  lessor's 
life  estate,  it  is  called  a  power  appendant.  The  lease  granted 
takes  effect  immediately  in  derogation  of  the  tenant's  life- 
estate,  and  binds  the  remainder-man,  if  it  does  not  expire 
during  the  continuance  of  the  life  estate.1  Powers  in  gross 
are  those  which  do  not  conflict  with  the  estate  of  the  donee, 
and  authorize  the  limitation  of  estates,  which  take  effect  out 
of  the  interest  or  estate  of  some  one  else.  Such  would  be 
a  power  given  to  a  life  tenant  to  dispose  of  the  remainder, 
to  raise  a  jointure  for  his  wife,  to  make  leases  commencing 
at  his  death.  The  exercise  of  these  powers  cannot  by  any 
possibility  affect  the  estates  to  which  they  are  attached.2 
Powers  are  also  divided  into  general,  and  special  or  partic- 
ular. If  the  donee  has  the  power  to  appoint  to  whom  he 
pleases  it  is  a  general  power ;  and  if  he  can  appoint  to  only 
certain  particular  persons,  it  is  a  special  or  particular  power.3 
Then  again  a  general  power  may  be  for  the  benefit  of  the 
donee,  or  one  in  trust  for  certain  beneficiaries.4  If  the 
power  be  to  create  a  new  estate,  it  is  called  a  power  of  ap- 
pointment. If  it  be  simply  to  destroy  an  estate  already 
vested,  it  is  called  a  power  of  revocation.  A  power  of  ap- 
pointment always  implies  a  power  of  revocation,  but  as  a 

1  Williams  on  Real  Prop.  310;  2  Washb.  on  Real  Peop.  639,  640;  Edwards 
v.  Slater,  Hard.  416;  Bergen  v.  Bennett,  1  Caines'  Cas.  15;  Maundrell  v. 
Maundrell,  10  Ves.  246  ;   Wilson  v.  Troup,  2  Cow.  236. 

2  1  Sugden  on  Pow.  114;  4  Cruise's  Dig.  220;  Gorin  v.  Gordon,  38  Miss. 
214;  Wilson  v.  Troup,  2  Cow.  236;  Tud.  Ld.  Cas.  293. 

3  2  Washb.  on  Real  Prop.  641 ;  Co.  Lit.  271  b,  Butler's  note,  231,  PI.  4, 
sect.  3;  Williams  on  Real  Prop.  309;  Roach  v.  Wadham,  6  East,  289;  Com- 
monwealth v.  Williams,  1  Harris,  29. 

4  Tud.  Ld.  Cas.  294 ;  Williams  on  Real  Prop.  307,  308 ;  Chance  on  Pow.,  sect. 
84. 

441 


§    561  POWERS.  [part   II. 

rule  an  express  power  of  revocation  will  not  raise  by  impli- 
cation a  power  of  appointment.  A  power  of  appointment 
cannot  be  exercised  without  revoking  a  previous  limitation  ; 
by  the  exercise  of  the  power  of  revocation,  where  there  is 
no  express  power  of  appointment,  the  land  reverts  to  the 
grantor  and  his  heirs.1 

§  561.  Suspension    and  destruction    of   powers. — All 

general  powers,  given  for  the  benefit  of  the  donee,  may  be 
released  by  him  to  one  holding  the  freehold,  whether  in 
possession,  remainder,  or  reversion,  and  thus  destroyed. 
And  this,  too,  whether  the  power  be  appendant,  in  gross,  or 
collateral.  For,  it  being  given  for  the  sole  benefit  of  the 
donee,  if  he  releases  it,  he  will  not  be  allowed  thereafter  to 
exercise  it  in  derogation  of  his  own  release.2  But  a  special 
power,  or  a  general  power  in  trust  for  certain  beneficiaries, 
cannot  be  extinguished  or  released  by  any  act  of  the  donee 
alone.  The  power  in  such  cases  is  in  the  nature  of  a  trust, 
and  the  beneficiaries  have  rights  therein  which  are  beyond 
the  power  of  the  donee  to  destroy.3  And  where  the  exer- 
cise of  the  special  power  is  mandatory,  thereby  imposing 
upon  the  donee  a  peremptory  duty  to  exercise  it ;  or  where 
the  discretion,  if  any  is  given  to  the  donee  as  to  its  exer- 
cise, is  to  be  exerted  and  employed  at  some  future  time, 
the  donee  has  no  power  to  extinguish  or  release  it,  even 


1  4  Cruise's  Dig.  219,220;  Sandf.  on  Uses,  154;  Tud.  Ld.  Cas.  264 ;  4  Kent's 
Com.  415;  Wright  v.  Tallmadge,  15  N.  Y.  307. 

2  Tud.  Ld.  Cas.  294;  Edwards  v.  Slater,  Hard.  416;  Chance  on  Pow.,  sect. 
3115;  1  Sugden  on  Pow.  112;  Williams  on  Real  Prop.  310;  Smith  v.  Death, 
5  Mad.  371 ;  Horner  v.  Swann,  Turn  &  Russ.  430;  Albany's  Case,  1  Rep.  11, 
b,  113  a;  West  v.  Bernly,  1  Russ.  &  M.  431. 

3  Co.  Lit.  237  a,  265  b;  1  Sugden  on  Pow.  117;  Doe  r.  Smyth,  6  B.  &  C. 
172 ;  s.  c,  9  Dowl.  &  Ry.  136;  Townson  v.  Tickell,  3  B.  &  A.  31 ;  Begbie  v. 
Croak,  2  Bing.  N.  C.  70;  Tuick  v.  Ludborough,  3  Bulstr.  30;  Tud.  Ld.  Cas. 
286,  295 ;  Chance  on  Pow.,  sect.  3105 ;  Tippet  o.  Eyres,  5  Mod.  457  :  Cunynghame 
v.  Thurlow,  1  Russ.  &  M.  436  n  ;  West  v.  Barney,  1  Russ.  &  M.  431 ;  Tainter 
».  Clark,  1 3  Mete.  220  ;  Norris  v.  Thompson,  4  Green  L.  307. 

442 


CH.  XV.]  POWERS.  §    561 

though  the  persons  interested  in,  and  to  be  benefited  by  its 
exercise,  consent  to  the  release,  and  join  in  the  deed.1  But 
if  it  is  within  the  discretion  of  the  donee  when  and  whether, 
if  at  all,  he  should  execute  the  power,  a  joint  deed  of  re- 
lease by  himself  and  the  beneficiaries  will  extinguish  the 
power.2  Where  the  power  is  appendant,  the  conveyance 
of  the  entire  estate  to  which  the  power  is  annexed  will  de- 
stroy the  power.  The  power  can  only  be  exercised  in  dero 
gation  of  the  estate,  and  the  donee  will  not  be  permitted  to 
defeat  his  own  grant  by  executing  the  power.3  But  if  he 
conveys  only  a  part  of  his  estate,  leaving  a  reversion  in 
him,  the  exercise  of  the  power  will  only  be  suspended  or 
postponed  to  the  estate  so  granted,  and  the  estate  created 
by  the  power  will  vest  upon  the  termination  of  the  prior 
demise.4  The  power  may  be  exercised  at  any  time;  only 
the  enjoyment  of  the  estate  thus  created  is  postponed.5     But 

1  2  Washb.  on  Real  Prop.  643 ;  Chance  on  Pow.,  sect.  3121 ;  Williams  on 
Real  Prop.  310. 

2  Brown  &  Sterritt's  Appeal,  27  Pa.  St.  62 ;  Allison  v.  Wilson's  Exrs.,  13 
Svrg.  &  Pv.  330. 

3  Goodrigbt  v.  Cato,  Dougl.  460 ;  Wilson  v.  Troup,  2  Cow.  195 ;  Noel  v. 
Henry,  McClell.  &  Yo.  302;  Bullock  v.  Thorne,  Moore,  615;  Anon.,  Moore, 
612;  Yellandtf.  Ficlis,  Moore,  788;  1  Sugden  on  Pow.  113-115;  Penn  v.  Pea- 
cock, For.  41 ;  Cas.  temp.  Talb.  43 ;  Webb  v.  Shaftesbury,  3  Myl.  &  Kee.  599 ; 
Parker  v.  White,  11  Ves.  jr.  209 ;  Walmesley  v.  Jowett,  23  Eng.  L.  &  E.  353  ; 
Jones  v.  Winwood,  4  Meas.  &  Wels.  653;  Chance  on  Pow.,  sects.  3155,  3159; 
Maundrell  v.  Maundrell,  10  Ves.  246 ;  Doe  v.  Britain,  2  B.  &  Aid.  93 ;  Williams 
on  Real  Prop.  310;  Tud.  Ld.  Cas.  260,  290;  4  Cruise's  Dig.  157;  Bringloeu. 
Goodson,  4  Bing.  N.  C.  726. 

*  Ren  v.  Bulkeley,  Dougl.  292;  Tyrrell  v.  Marsh,  3  Bing.  31 ;  Roper  v.  Hali- 
fax, 8  Taunt.  845;  Doe  v.  Scarborough,  3  Adolp.  &  Ell.  2;  Bringloe  v.  Good- 
«on,  4  Bing.  N.  C.  726 ;  4  Cruise's  Dig.  221 ;  Goodright  v.  Cator,  Dougl.  477; 
Tud.  Ld.  Cas.  287. 

5  1  Sugden  on  Pow.  114,  115,  citing  Bingloe  v.  Goodson,  4  Bing.  N.  C. 
726;  Anon.,  Moore  612;  Bullock  v.  Thorne,  Moore,  615;  Ren  v.  Bulkoley, 
Dougl.  292  ;  Tyrrell  v.  Marsh,  3  Bing.  31 ;  Davies  v.  Bush,  McClell.  &  Yo.  58  ; 
Wilson  v.  Troup,  2  Cow.  237;  Dalby  v.  Pullen,  2  Bing.  144;  Tud.  Ld.  Cas. 
646;  Chance  on  Pow.,  sect.  402.  Contra,  Snapo  v.  Turton,  Cro.  Car.  472;  Mor- 
daunt  v.  Peterborough,  3  Keb.  305.  But  if  the  power  appendant  enables  only 
the  creation  of  estates  in  possession,  as  where  it  is  a  power  to  make  leases  in 

443 


§    562  POWERS.  [part  II. 

no  conveyance  of  the  estate  of  the  donee,  except  by  feof- 
nient,  will  cause  an  extinguishment  of  the  power  in  gross. 
As  a  rule  a  release  is  the  only  mode  of  extinguishing  this 
kind  of  power.1 

§  562.  How  powers  may  be  created. — Powers  may  be 
created  by  deed  or  by  will.  They  may  be  incorporated  in 
the  same  instrument  which  conveys  the  property,  or  they 
may  be  indorsed  thereon,  or  even  granted  by  a  separate 
instrument.  If  the  instrument  be  a  deed  operating  by  trans- 
mutation of  possession,  the  conveyance  of  the  legal  estate 
is  necessary  for  the  creation  of  the  power.  In  the  case  of 
every  other  instrument  of  conveyance,  there  can  be  a  valid 
grant  of  a  power  without  a  transfer  of  the  legal  estate.2 
No  particular  words  or  phrases  are  required..  Any  words 
which  clearly  indicate  the  intention  of  the  donor  to  create  a 
power,  and  which  define  its  scope  with  a  reasonable  degree 
of  certainty,  will  be  sufficient.  This  rule  governs  all  classes 
of  powers,  whether  operating  under  the  Statute  of  Uses  or 
the  Statute  of  Wills.3     Where  the  deed,  which  creates  the 

possession   and   not  in  futuro,  the  exercise  of  the  power  is  altogether  sus- 
pended.    Bringloe  v.  Goodson,  4  Bing.  N.  C.  726 ;  1  Sugden  on  Pow.  116. 

1  Chance  on  Pow.,  sect  3172 ;  Edwards  v.  Slater,  Hard.  416  ;  Savile  v.  Blacket, 
1  P.  Wms.  777  ;  2  Washb.  on  Real  Prop.  643 ;  1  Sugden  on  Pow.  112. 

2  Outon  v.  Weeks,  2  Keb.  809;  Fitz  v.  Smallbrook,  1  Keb.  134;  1  Sugden 
on  Pow.  217,  228-231 ;  Gilbert  on  Uses.  46 ;  Williams  on  Pers.  Prop.  246 ;  Co. 
Lit.  271  b,  III.  sect.  5,  Butler's  note ;  Powell  on  Devises ;  1  Sandf.  on  Uses,  195 ; 
Andrews'  Case,  Moore,  107;  Popham  v.  Bampfield,  1  Vern.  79;  Thompson  v. 
Lawley,  2  Bos.  &  Pul.  311 ;  Doe  v.  Finch,  4  Barn.  &  Adolph.  283;  Perry  v. 
Phillips,  1  Ves.  jr.  255;  Fearne  Cont.  Rem.  128;  Rash  v.  Lewis,  21  Pa.  St. 
72;  3  Kent's  Com.  319;  Maundrell  «.  Maundrell,  10  Ves.  255;  6  Cruise's  Dig. 
490. 

3  2  Washb.  on  Real  Prop.  650 ;  1  Sugden  on  Pow.  118 ;  McCord  v.  McCord, 
19  Ga.  602;  Choofstall  v.  Powell,  1  Grant's  Cas.  19;  Bradley  v.  Wescott,  13 
Ves.  445;  Smith  v.  Bell,  6  Pet.  68;  Scott  v.  Perkins,  28  Me.  22;  Harris  v. 
Knapp,  21  Pick.  416 ;  Porcher  v.  Daniels.  12  Rich.  Eq.  349  :  Brant  v.  Va.  Coal 
Iron  Co.,  93  U.  S.  326;  Jones  v.  Hurst,  7  Ired.  Eq.  134;  Withington's  Appeal, 
32  Pa.  St.  419;  Dominick  v.  Michael,  4  Sandf.  374 ;  Gregory  v.  Congill,  19 
Mo.  415;  Turner  v.  Timberlake,  53  Mo.  371 ;  Putnam  School   v.  Fisher,   30 

444 


CH.  XV.]  ,  POWERS.  §    563 

power,  operates  by  transmutation  of  possession,  and  a  seisin 
is  therefore  raised  by  the  deed  to  support  the  use,  which  is 
to  be  created  under  the  power,  the  legal  estate  so  conveyed 
must  be  as  extensive  as  the  use  to  be  thus  created.  The 
appointee  under  the  power  cannot  take  a  larger  estate  than 
that  granted  to  the  feoffee  to  uses.  This  is  only  a  special 
application  of  a  general  rule  governing  all  classes  of  uses.1 

§  563.  Powers  distinguished  from  estates.  — As  a  con- 
sequence of  this  liberal  rule  concerning  words  necessary  to 
create  a  power,  it  is  very  often  difficult  to  determine  whether 
the  intention  of  a  testator  was  to  give  an  estate  in  the  land, 
or  only  a  naked  power.  Since  technical  words  are  used  to 
create  an  estate  by  deed,  it  rarely  happens  that  doubt  will 
arise  in  the  construction  of  a  power  by  deed.  The  question, 
therefore,  possesses  importance  only  in  relation  to  wills.2 
The  intention  of  the  testator  will  always  govern  whenever 
it  can  be  clearly  ascertained,  even  though  the  literal  mean- 
ing of  the  words  used  would  indicate  a  different  conclusion.3 
The  most  numerous  cases  have  arisen  under  devises,  in  which 
executors  are  directed  to  sell  lands  for  the  purpose  of  dis- 
tribution. If  the  executors  are  intended  to  have  possession 
until  sale  under  the  power,  then  it  is,  of  course,  a  power 
coupled  with  an  interest,  and  the  estate  does  not  descend 

Me.  523;  Mather  v.  Norton,  8  Eng.  L.  &  E.  255;  Bateman  v.  Bateman,  1  Atk. 
421;  Conover  v.  Hoffman,  1  Bosw.  214;  Mundy  v.  Sawter,  3  Gratt.  518; 
Dann  v.  Keeling,  2  Dev.  283 ;  Owen  v.  Ellis,  64  Mo.  77.     See  note  27. 

1  Co.  Lit.  271  b,  Butler's  note,  231;  Cleveland  v.  Hallett,  6  Cush.403;  Nor- 
ceum  v.  D'Oench,  17  Mo.  98;  Exeter  v.  Ociorme,  1  N.  H.  232;  1  Sugden  on 
Pow.  231. 

2  4  Kent's  Com.  319;  Sharpsteen  v.  Tillon,  3  Cow.  651 ;  Jameson  v.  Smith, 
4  Bibb.  307 ;  Gray  v.  Lynch,  8  Gill,  403  ;  Peter  v.  Beverley,  10  Pet.  532 ;  Jack- 
son v.  Jansen,  6  Johns.  73 ;  Jackson  v.  Schauber,  7  Cow.  187 ;  Clary  v.  Prayer, 
8  Gill  &  J.  403;  Walker  v.  Quigg,  6  Watts,  87;  Ladd  v.  Ladd,  8  How.  10. 

3  Bloomer  v.  Waldron,  3  Hill,  361.  See  cases  cited  in  preceding  note; 
Franklin  v.  Osgood,  14  Johns.  527 ;  Brearly  v  Brearly,  1  Stockt.  21 ;  Digges' 
Lessee  v.  Jarman,  4  Har.&McH.  468;  Jackson  v.  Ferris,  15  Johns.  346;  Nel- 
son v.  Carringtoff,  4  Munf.  332,  pi.  9 ;  Zeback  v.  Smith,  3  Binn.  69. 

445 


§    564  POWERS.  *  [part   II. 

for  the  time  being  to  the  donor's  heirs.1  Succinctly  stated, 
if  the  devise  be  that  "  the  executor  shall  sell,"  or  that  "  the 
land  shall  be  sold,"  only  a  naked  power  is  granted.  But  a 
devise  to  the  executor  to  sell,  or  words  of  similar  import, 
will  vest  the  legal  title  in  him;  it  will  be  a  power  coupled 
with  an  interest.2  All  doubt  is,  of  course  removed  where 
the  will  makes  some  other  disposition  of  the  legal  estate.3 
In  New  York,  by  statute,  the  executor  in  all  such  cases 
takes  only  a  naked  power,  unless  some  duty  is  imposed 
upon  him  in  regard  to  the  management  of  the  property, 
which  would  require  its  possession.4 

§  564.  Power  enlarging  the  interest,  with  which  it  is 
coupled.  —  If  the  power  is  general  and  coupled  with  an  in- 
terest, the  duration  of  which  is  not  clearly  defined,  as  where 
there  is  a  devise  of  lands  generally,  with  full  power  to  dis- 
pose of  them  by  deed  or  by  will,  the  devise  will  be  construed 
to  be  that  of  an  estate  in  fee,  and  not  simply  a  life  estate 
with  a  general  power  in  gross  attached  thereto.     But  if  the 

J  Gray  v.  Lynch,  8  Gill,  403;  Hartley  v.  Minor's  App.,  53  Pa.  212;  Clary 
v.  Frayer,  8  Gill  &  J.  403  ;  4  Kent's  Com.  320. 

2  Yates  v.  Crompton,  3  P.  Wms.  308 ;  Lancaster  v.  Thornton,  2  Burr, 
1027 ;  Bergen  v.  Bennett,  1  Caines'  Cas.  16 ;  Doe  v.  Shotter,  8  Adol.  &  Ell. 
905;  Pattonw.  Crow,  26  Ala.  426;  Clinefelter  v.  Avers,  16  111.  329;  Gregg  v. 
Currier,  36  N.  H.  200;  Thornton  v.  Gailliard,  3  Kich.  418;  Bayard  v.  Rowan, 
1  A.  K.  Marsh.  214;  Snowhill  v.  Snowhill,  3  Zabr.  447;  Killam  v.  Allen,  52 
Barb.  605;  Inman  v.  Jackson,  4  Greenl.  237;  McKnight  v.  Wimer,  38  Mo. 
132  ;  1  Williams  on  Ex.  540;  4  Kent's  Com.  326;  1  Sugden  on  Pow.  189-194; 
Mosby  v.  Mosby,  and  Miller  v.  Jones,  9  Gratt.  584;  Fluke  v.  Fluke,  1  Greenl. 
478 ;  Fay  e.  Fay.  1  Cush.  93 ;  Howell  v.  Barnes,  Cro.  Car.  382 ;  Haskell  v. 
House,  3  Brev.  242;  Ferebee  v.  Proctor,  2  Dev.  &  B.  439;  Jackson  v.  Shau- 
ber,  7  Cow.  18 ;  Peck  v.  Henderson.  7  Yerg.  18 ;  Bloomer  v.  Waldron,  3  Hill, 
361 ;  Co.  Lit.  113  a,  Hargrave's  note,  2;  Greenough  v.  Wells,  10  Cush.  571; 
Gordon  v.  Overton,  8  Yerg.  121. 

3  Den  v.  Aweling,  1  Dutch.  440  ;  Hemingway  v.  Hemingway,  22  Conn.  462; 
Peter  v.  Beverley,  10  Pet.  532  ;  Laid  v.  Ladd,  8  How.  10. 

4  N.  Y.  Rev.  Stat.,  Art.  2,  sect.  68.  In  Pennsylvania  a  statute  provides 
that  in  all  such  cases,  whatever  may  be  the  phrasoology  used,  the  executor 
takes  the  power  coupled  with  the  estate.  Col>l>  v.  Biddle,  14  Pa.  St  444; 
Brown  v.  Sterritt,  27  Pa.  St.  32;  Shippen's  Heirs  v.  Clapp,  29  Pa.  St.  265. 

446 


CH.  XV.]  POWERS.  §    565 

power  is  special,  or  a  particular  estate  is  expressly  given 
with  a  general  power  of  disposal,  the  power  will  not  enlarge 
the  estate,  and  the  testator's  heirs"  will  take  as  reversioners, 
if  the  power  is  not  exercised.1 

§  565.  Who  can  be  donees.  —  Any  one,  who  is  capable 
of  holding  and  disposing  of  his  own  property,  can  be  the 
donee  of  the  power.  It  seems  also  that  a  purely  collateral 
power  may  be  exercised  by  an  infant ;  but  this  is  doubtful,, 
and  it  is  to  be  supposed  that,  where  the  power  is  to  be  ex- 
ecuted by  means  of  an  instrument  which  an  infant  is  not 
capable  of  making,  he  will  not  be  able  to  execute  the  power 
until  he  becomes  of  age.2  But  a  married  woman  can  exer- 
cise a  power  as  freely  as  if  she  were  a.  feme  sole.  This  is  a 
common  mode  of  enabling  a  married  woman  to  dispose  of 
the  property  secured  to  her  by  marriage  settlement.3 

1  1  Sugden  on  Pow.  179,  180 ;  Flintham's  App.,  11  Serg.  &  R.  23,  24 ;  Agpe  v 
Agee,  22  Mo.  366;  Fairman  v.  Beal,  14  111.  244;  Bradley  v.  Westcott,  13  Ves. 
445;  Ramsdellv.  Eamsdell,  21  Me.  288;  Jennor  v.  Hardie,  1  Leo.  283;  Jack- 
son v.  Robbins,  16  Johns.  537;  Ward  v.  Amory,  1  Curt.  C.  Ct.  419;  Burleigh 
v.  Clough,  52  N.  H.  272;  Collins  v.  Carlisle's  Heirs,  7  B.  Mod.  13;  Deadriek  v. 
Armour,  10  Humph.  588;  Jackson  v.  Coleman,  2  Johns.  391;  McGaughey's 
Adm'rs  v.  Henry,  15  B.  Mon.  383;  Maundrellv.  Maundrell,  10  Ves.  246;  Her- 
rick  v.  Babcock,  12  Johns.  389;  Reinders  v.  Koppelman,  68  Mo.  482;  30 
Am.  Rep.  482;  Green  v.  Sutton,  50  Mo.  190;  Gregory  v.  Cowgill,  19  Mo.  415; 
Ruby  v.  Barrett,  12  Mo.  1 ;  Randall  v.  Schrader,  20  Ala.  338 ;  Urich's  App., 
86  Pa.  St.  386 ;  27  Am.  Rep.  707 ;  Page  v.  Roper,  21  Eng.  L.  &  E.  499.  But 
this  is  not  an  absolutely  invariable  rule.  If,  from  the  whole  will,  it  appears 
to  have  been  the  testator's  intention  to  give  a  fee  simple  estate,  the  estate  will 
be  enlarged  by  the  power,  notwithstanding  the  devisee's  estate  has  been  ex- 
pressly limited  for  life.  Goodtitle  v.  Otway,  2  Wils.  6;  Bradford  v.  Street, 
11  Ves.  135;  Doe  v.  Lewis,  3  Adol.  &  Ell.  123;  Wilson  v.  Gaines,  9  Rich. 
Eq.  420;  Andrews  v.  Brumfield,  32  Miss.  107;  Denson  v.  Mitchell,  26  Ala. 
360;  Hoy  v.  Master,  6  Sim.  568;  Robinson  v.  Dusgale,  2  Vt.  181.  And  where 
the  power  annexed  enlarges  the  estate  into  a  fee,  it  will,  if  not  expressly  qual- 
ified, rendei  any  subsequent  limitation  void.  Jones  v.  Bacon  68  Me.  34 ;  s.  c, 
28  Am.  Rep.  1;  McKenzie's  App.,  41  Conn.  607;  19  Am.  Rep.  525;  Rona  v. 
Meier,  47  Iowa,  607;  29  Am.  Rep.  493. 

2  4  Kent's  Com.  624,  325;  1  Sugden  on  Pow.  181-211;  2  Washb.  on  Real 
Prop.  652. 

8  1  Sugden  on  Pow.  182 ;  4  Kent's  Com.  325 ;  Doe  v.  Eyre,  3  C.  B.  578 ;  s.  c.r 
6C.  B.  741 ;  Ladd  v.  Ladd,  8  How.  27 ;  Hoover  v.  Samaritan  Society,  5  Whart. 

447 


§    566  POWERS.  [part   II. 

§  566.  By  whom  the  power  may  be  executed. — As  a 
general  proposition,  only  those  who  are  named  as  the  donees 
in  the  instrument  creating  the  power  can  execute  the  power. 
The  donee  cannot  assign  it  unless  he  is  expressly  authorized, 
nor  can  his  personal  representatives  execute  it  unless  ex- 
pressly named.1  This,  however,  is  not  true  of  powers  in 
trust,  or  powers  coupled  with  an  interest,  the  execution  of 
which  does  not  require  the  exercise  of  a  special  discretion 
reposed  in  the  particular  donee.  In  the  case  of  a  power  in 
trust,  the  court  will  not  allow  any  accident  to  or  neglect  of 
the  trustee  —  not  even  his  death  — to  defeat  the  trust  power. 
It  will  either  compel  the  trustee  to  execute  it  or  appoint  a 
new  trustee  in  his  stead,  who  will  have  the  same  powers.2 
But  the  trustee  cannot  delegate  his  power  without  authority.3 
A  power  coupled  with  an  interest  will  ordinarily,  not  only 
survive  the  donee,  but  can  be  exercised  by  him,  to  Avhom 
the  interest  has  been  assigned,  provided  always  the  power 
is  not  expressly  personal  to  the  donee.4  Where  the  power 
is  limited  to  several  as  a  class,  such  as  executors,  trustees, 
or  sons,  although  all  must  join  in  the  execution,  if  alive, 
the  power  will  survive  the  death  of  one  or  more  ;  but  there 
must  be  at  least  two  surviving,  in  order  to  comply  with  the 

445 ;  Wright  v.  Tallm«dge,  15  N.  Y.  307 ;  Leavitt  v.  Pell,  25  N.  Y.  474 ;  Brad- 
ish  v.  Gibbs,  3  Johns.  Ch.  523 ;  Barnes  v.  Irwin,  1  Dall.  201 ;  Rush  v.  Lewis, 
21  Pa.  St.  72;  Doe  v.  Vincent,  1  Houst.  416-427.     See  ante,  sect.  469,  note. 

1  1  Sugden  on  Pow.  214,  215;  4  Cruise's  Dig.  211 ;  Cole  r.  Wade,  16  Ves. 
27;  Tainter  v.  Clarke,  13  Mete.  220-226 ;  Broom's  Leg.  Max.  665. 

2  2  Sugden  on  Pow.  158 ;  Greenou^h  v.  Wells ;  Hunt  v.  Rousmanire,  8 
Wheat.  207;  Gibbs  v.  Marsh,  2  Mete.  243;  Wilson  i;.  Troup,  2  Cow.  236,  237; 
Leeds  v.  Wakefield,  10  Gray,  517. 

3  Story's  Eq.  Jur.  1062 ;  Osgood  v.  Franklin,  2  Johns.  Ch.  21 ;  Berger  v.  Duff, 
4  Johns.  Ch.  368 ;  Franklin  v.  Osgood,  14  Johns.  562,  563 ;  Peter  v.  Beverley, 
10  Pet.  565;  Hertell  v.  Van  Buren,  3  Edw.  Ch.  20;  Zebach  v.  Smith,  3  Binn. 
69;  Cole  v.  Wade,  16  Ves.  28  n;  1  Sugden  on  Pow.  214-216;  Lewin  on  Tr. 
228. 

*  Hunt  v.  Rousmanier,  8  Wheat.  203 ;  Wilson  v.  Troup,  2  Cow.  236 ;  Ber- 
gen v.  Bennett,  1  Caines'  Cas.  15;  Hartley's  v.  Minor's  App.,  53  Pa.  St.  212; 
Jencks  v.  Alexander,  11  Paige  Ch.  619 ;  Doolittle  v>  Lewis,  7  Johns.  Ch.  46. 
448 


CH.  XV.]  POWERS.  §    567 

plural  description  of  the  donees.1  In  the  case  of  executors, 
the  rule  is  so  far  relaxed  that  a  single  survivor  may  execute 
the  power ;  and  where  the  power  is  coupled  with  an  interest, 
the  power  may  be  exercised  by  those  who  qualify  as  execu- 
tors ;  it  is  not  necessary  for  the  others  to  join  in  the  execu- 
tion of  the  power.2  Its  exercise  does  not,  however,  depend 
upon  their  qualification  as  executors ;  they  may  insist  upon 
their  right  to  join  in  the  execution,  even  though  they  or  any 
of  them  have  failed  to  qualify  or  have  resigned  their  execu- 
torships.3 And  although  by  the  law  the  executor,  appointed 
by  will  in  one  State,  may  not  be  able  to  exercise  the  ordi- 
nary powers  of  an  executor  over  lands  situated  in  another 
State,  yet  he  may  execute  a  testamentary  power  of  sale 
when  so  directed  to  do.4  Where  the  power  is  given  to  sev- 
eral donees  nominatim,  it  indicates  the  repose  of  a  personal 
discretion  in  each,  and  the  power  will  not  survive  the  death 
of  one  of  them.5 

§  567.  Mode  of  execution.  —  In  the  execution  of  the 
power  the  donee  must  observe  strictly  all  the  conditions 
and  restrictions  imposed  by  the  donor,  both  as  to  the  man- 
ner and  the  time  of  execution.  The  donor  has  the  right  to 
impose  whatever  conditions  he  pleases,  and  however  unes- 

1  1  Sugden  on  Pow.  144,  146 ;  Story's  Eq.  Jur.,  sects.  1061, 1062,  n ;  4  Greenl. 
Cruise  Dig.  211  n;  Co.  Lit.  113,  Hargrave's  note,  146;  Tainter  v.  Clark,  13 
Mete.  220;  Franklin  v.  Csgood,  14  Johns.  553;  Peter  v.  Beverley,  10  Pet.  564; 
Montefiore  v.  Browne,  7  H.  L.  Cas.  261. 

2  4  Kent's  Com.  320 ;  Bergen  v.  Bennett,  1  Caines'  Cas.  16 ;  1  Sugden  on  Pow. 
144,146;  Osgood  v.  Franklin,  2  Johns.  Ch.  19;  Franklin  v.  Osgood,  16  Johns. 
553 ;  Peter  v.  Beverley,  10  Pet.  564 ;  Tainter  v.  Clark,  13  Mete.  220 ;  Drayton 
v.  Grimke,  1  Bailey  Eq.  392. 

s  Tainter  v.  Clarke,  13  Mete.  220.    See  cases  cited  in  note  2  supra. 

1  Doolittle  v.  Lewis  7  Johns.  Ch.  45-48.  But  see  Hutchins  v.  State  Bank, 
12  Mete.  425. 

5  Co.  Lit.  113,  Hargrave's  note,  146;  4  Greenl.  Cruise  Dig.  211  n;  Story's 
Eq.  Jur.,  sects.  1061, 1062  ;1  Sugden  on  Pow.  144-146;  Loringv.  Marsh,  27  Law 
Repos.  377;  Peter  v.  Beverley,  10  Pot.  563;  Franklin  v.  Osgood,  14  Johns. 
553;  Tainter  v.  Clarke,  13  Mete.  220;  Cole  v.  Wade,  16  Ves.  27. 

29  449 


§    568  POWERS.  [PART    II. 

sential  they  may  appear  to  be,  a  neglect  of  them  would  make 
the  execution  defective.  They  must  be  strictly  complied 
with.1  Thus  a  power  to  appoint  by  deed  cannot  be  exer- 
cised by  will ;  but  if  there  is  no  restriction  as  to  the  kind 
of  instrument,  it  may  be  either  by  deed  or  by  will.  So 
must  all  other  special  directions  be  observed.2  If  the  power 
be  to  sell,  the  property  can  be  sold  only  in  the  manner  pre- 
scribed by  the  donor,  and  a  power  of  sale  will  not  ordinarily 
imply  a  power  to  mortgage.3 

§  568.  Who  may  be  appointees. — If  it  be  a  general 
power,  any  one  whom  the  donee  selects  may  take  under  the 
power.  A  wife  may  appoint  the  estate  to  her  husband,  and 
so  may  the  husband  to  his  wife.4  The  donee  may  appoint 
himself.5  And  if  the  donee  appoints  to  A.  to  the  use  of  B. , 
the  Statute  of  Uses  will  execute  the  use  in  A.,  leaving  the 
use  in  B.  unexecuted,  it  being  a  use  upon  a  use.6  But 
this  rule  would  not  apply  to  powers  which  operated  under 
the  Statute  of  Wills.  If  it  be  a  special  power,  it  can  be 
exercised  only  in  favor  of  the  special  objects  named.     Thus 

1  1  Sugden  on  Pow.  211,  250,  278  ;  Langford  v.  Eyre,  1  P.  Wms.  740 ;  Haber- 
gham  v.Vincent,  2  Ves.  231;  Hawkins  v.  Kemp,  3  East,  410;  Bentham  v. 
Smith,  Cheves  Eq.  33;  Andrews  v.  Rove,  12  Rich.  546;  Vincent  v.  Bishop,  5 
Exch.  683 ;  Ladd  v.  Ladd,  8  How.  30-40 ;  Burdett  v.  Spilsbury,  6  Mann.  &  Gr. 
386;  "Wright  v.  Wakeford,  17  Ves.  451;  Wright  v.  Barlow,  3  Maule  &  S. 
612;  Ives  v.  Davenport,  3  Hill,  373;  "Williams  on  Real  Prop.  295. 

2  Ladd  v.  Ladd,  8  How.  30-40;  Moore  v.  Dimond,  5  R.  I.  130;  Alley  v. 
Lawrence,  12  Gray,  375;  Majoribanks  v.  Hovenden,  1  Drury  11 ;  1  Chance  on 
Pow.  273 ;  Doe  v.  Peach,  2  Maule  &  S.  576 ;  Hopkins  v.  Myall,  2  Russ.  & 
Mylne,  86.     See  cases  cited  in  note  46. 

3  1  Sugden  on  Pow.  513 ;  4  Kent's  Com.  331 ;  Bloomer  v.  Waldron,  3  Hill, 
361;  Leavitt  v.  Pell,  25  N.  Y.  474;  Ives  v.  Davenport,  3  Hill,  373. 

*  1  Sugden  on  Pov  .  182 ;  4  Kent's  Com.  325 ;  Doe  v.  Eyre,3  C.  B.  578 ;  ».«.,  5 
C.  B.  741 ;  Hoover  v.  Samaritan  Society,  5  WThart.  445 ;  Barnes  r.  Irwin,  2 
Dall.  201;  Ladd  v.  Ladd,  8  How.  27 ;  Bradish  v.  Gibbs,  3  Johns.  Ch.  623; 
Wright  v.  Tallmadge,  15  N.  Y.  307;  Leavitt  v.  Pell,  25  N.  Y.  474;  2  Sugden 
on  Pow.  24. 

5  2  Washb.  on  Real  Prop.  660 ;  "Williams  on  Real  Prop.  295,  n.  1. 

«  1  Sugden  on  Pow.  229 ;  2  Prest.  Abst.  248 ;  2  Washb.  on  Real  Prop.  613. 

450 


CH.  XV.]  POWERS.  §    569 

a  power  of  appointment  to  children  will  not  support  an  ap- 
pointment to  grandchildren,  unless  in  some  unusual  cases, 
strongly  impregnated  with  circumstances,  such  as  the  non- 
existence of  children  at  .the  time  when  the  power  was 
created,  and  the  impossibility  of  other  children  being  subse- 
quently born,  which  clearly  show  an  intention  to  refer  to 
grandchildren  under  the  name  of  children.1  But  the  term 
issue  is  generally  capable  of  embracing  all  descendants  of 
every  generation.2 

§  569.  Execution  by  implication. — In  order  to  insure 
a  valid  execution,  the  power  should  be  expressly  referred 
to  in  the  instrument  of  execution ;  but  this  is  not  necessary 
if  it  appears  in  any  way,  upon  the  face  of  the  instrument, 
or  from  the  facts  of  the  case,  to  have  been  the  intention  of 
the  donee  to  exercise  the  power.3  And  the  courts  have  of 
late  years  so  far  relaxed  the  rule  as  to  construe  the  instru- 
ment to  be,  by  necessary  intendment,  a  good  execution  of 
the  power,  if  it  cannot  operate  in  any  other  way,  notwith- 
standing the  deed  or  will  purports  to  dispose  only  of  the 
individual  property  of  the  donee.4  A  specific  reference  to 
the  property  subject  to  the  power  will  be  sufficientrin  the 
case  of  a  collateral  or  naked  power  ;  but  where  the  power 
is  appendant  or  in  gross,  if  there  be  no  express  reference 
to  the  power,  only  the  legal  estate,  to  which  it  is  attached, 
will  pass.  The  capacity  of  the  instrument  to  operate  upon 
the  estate  of  the  donee  negatives  any  implied  or  presumed 
intention  to  exercise  the  power.  And  where  the  power  is 
not  coupled  with  an  interest,  if  the  donee  has  no  property 
which  he  could  dispose  of  by  means  of  the  instrument  exe- 
t 

1  2  Sugden  on  Pow.  253>'4.Kent's  Com.  345;  Tud.  Ld.  Cas.  306;  Wythe  v. 
Thurlston,  Ambl.  655;>Horwitz  v.  Morris,  49  Pa.  Bi.  211. 

3  Wythe  v.  ThuEfeton,  Ambl.-  555;  Freeman  v.  Parsley,  3  Ves.  421. 

»  1  Sugden  on  Pow.  232;  4  Kent's  Com.  334;  Story's  Eq.  Jur.,  sect.  1062  a 

4  Doe  v.  Vincent,  1  Houst.  416,  427. 

451 


§    570  POWERS.  [part    II. 

cuted,  it  will  be  a  good  execution  of  the  power,  though 
neither  the  power  nor  the  property  was  referred  to.1 

§  570.  Excessive  execution.  —  To  what  extent  an  exces- 
sive execution  will  affect  the  validity  of  the  appointment 
depends  upon  the  ability  to  separate  the  good  part  from  the 
bad  part.  If  the  excess  can  be  separated  and  clearly  dis- 
tinguished from  what  would  have  been  a  valid  execution, 
the  latter  will  be  sustained,  and  only  the  excess  declared 
void.  But  if  such  a  separation  cannot  be  made  without  de- 
stroying the  evidence  of  the  donee's  intention  to  exercise  the 
power  in  the.  manner  in  which  he  could,  the  whole  will  be 
avoided,  and  a  failure  of  execution  will  be  decreed.1  Thus, 
if  the  appointment  be  made  to  a  number  of  persons,  some 
of  whom  can  take  and  others  cannot,  it  will  be  good  as  to 
the  former,  at  least,  in  the  case  of  a  general  power.  If  the 
power  be  special,  it  would  be  good  as  to  those  who  can 
take,  provided  the  partial  execution  of  the  power  in  this 
manner  does  not  affect  the  lawful  rights  of  the  others.3  So 
also  if  the  donee  appoints  a  larger  sum  or  a  larger  estate 
than  the  power  authorizes,  the  execution  will  be  good  within 
the  limits  of  the  power ;  or  if  he  annexes  to  the  appointment 
conditions  which  are  prohibited  or  not  authorized  by  the 
terms  of  the  power,  the  illegal  conditions  will  be  void,  and 
the  appointee  will  take  an  absolute  estate.4     In  thisconnec- 

1  4  Kent'8  Com.  335 ;  Amory  v.  Meredith,  7  Allen,  397  ;  Blagge  v.  Miles,  1 
Story,  426 ;  "White  v.  Hicks,  33  N.  Y.  392 ;  Jones  v.  Wood,  16  Pa.  St.  25 ; 
Hay  v.  Mayer,  8 Watts,  203 ;  Probert  v.  Morgan,  1  Atk.  440 ;  1  Sugden  on  Pow. 
432;  4  Cruise  Dig.  212;  Co.  Lit.  271  b,  Butler's  note,  231 ;  2  Washb.  on  Real 
Prop.  612 ;  Doe  v.  Rooke,  6  B.  &  C.  720;  Bepper's  Will,  1  Pars.  Eq.  Cas.  440; 
Maryland  Mut.  Benev.  Society  v.  Clendiner,  44  Md.  429 ;  22  Am.  Rep.  52. 

2Tud.  Ld.  Cas.  306;  2  Sugd.Pow.  55,  62,75;  4  Cruise  Dig.  205;  Crompe 
v.  Barrow,  4  Ves.  681 ;  Warner  v.  Howell,  3  Wash.  C.  Ct.  12 ;  Hay  v.  Wat- 
kins,  3  Dru.  &  Warr.  339 ;  Alexander  v.  Alexander,  2  Ves.  sr.  640 ;  Funk  v. 
Eggleston,  92111.  515;  34  Am.  Rep.  136. 

8  Sadler  v.  Pratt,  5  Sim.  632.     See  cases  cited  in  note  58. 

*  Parker  v.  Parker,  Gibb.  Eq.  168 ;  2  Sugden  on  Pow.  85 ;  Tud.  Ld.  Cas.  317- 
319;  Alexander  v.  Alexander,  2  Ves.  sr.  640;  4  Cruise  Dig.  202;  Roe  v.  Pri- 
452 


CH.  XV.]  POWERS.  §    572 

tion  it  may  be  stated  that  the  cy  pres  doctrine  of  construc- 
tion applies  to  powers  executed  by  will,  as  it  does  to  all  tes- 
tamentary dispositions.  If  an  appointment  by  will  be  void 
in  part,  when  literally  construed,  and  there  appears  on  the 
face  of  the  will  a  general  intent,  which  would  be  a  good  ex- 
ecution of  the  power  were  it  not  for  the  special  intent  man- 
ifested by  the  manner  in  which  he  executes  it,  the  general 
intent  will  prevail,  and  the  appointment  will  be  held  to  be 
good.  Thus,  if  the  appointment  be  to  an  unborn  son  for 
life,  with  remainder  to  his  (the  son's)  unborn  sons  in  tail, 
since  the  latter  limitation  is  void  as  against  the  rule  of  per- 
petuity, the  court  would  construe  the  appointment  an  estate 
tail  in  the  first  taker,  instead  of  a  life  estate,  there  appear- 
ing to  have  been  a  general  intent  to  that  effect.1 

§  571.  Successive  execution. — The  appointment  of  a 
less  estate  than  what  may  be  created  under  the  power  will 
be  good,  unless  there  is  an  express  restriction  against  a  par- 
tial execution.2  And  as  long  as  the  power  is  not  exhausted 
it  may  be  exercised  successively,  at  different  times  over  dif- 
ferent parts  of  the  property,  or  over  different  estates  in  the 
same  tract  of  land,  whether  the  power  is  one  of  appoint- 
ment or  of  revocation.  And  where  it  is  intended  that  the 
power  shall  not  be  subsequently  exercised,  it  is  the  custom 
to  release  it,  where  that  is  possible.3 

§  572.  Revocation  of  appointment.  —  The  donee  cannot 
revoke  his  appointment,  unless  he  expressly  reserves  the 
power  of  revocation  in  the  instrument  of  appointment,  or 

deaux,  10  East,  158;  Powcey  v.  Bowen,  1  Chan.  Cas.  23;  Campbell  v.  Leach, 
Ambl.  740. 

1  2  Sugden  on  Pow.  60,  61 ;  2  Washb.  on  Real  Prop.  666 ;  Robinson  v. 
Hardcastle,  2  T.  R.  241 ;  Leeds  v.  WakeBeld,  10  Gray,  514,  519. 

a  4  Cruise  Dig.  205;  2  Washb.  on  Real  Prop.  621-668;  Butler  v.  Heustis, 
68  111.  594 ;  18  Am.  Rep.  589. 

»  1  Sugden  on  Pow.  342  ;  2  Id.,  43-45 ;  4  Cruise  Dig.  200,  201 ;  Digges's  Case, 
1  Rep.  174;  Co.  Lit.  271  b,  Butler's  note,  231;  Woolston  v.  Woolston,  1  W. 
Bl.  281. 

453 


§    577  POWERS.  [part   II. 

it  is  granted  to  him  in  the  instrument  of  creation.  And  if 
the  power  may  be  exercised  by  deed  or  by  will,  the  revoca- 
tion of  an  appointment  by  deed  will  revive  the  power  to 
appoint  by  will.1 

§  573.  Defective  execution  —  How  and  when  cured.  — 

The  general  rule  is  that  an  execution,  defective  because  of 
a  failure  to  conform  to  the  directions  of  the  donor,  will  be 
nugatory,  and  the  appointment  absolutely  void.  And  if  the 
appointment  is  a  mere  gift  to  the  appointee,  and  the  power 
is  general  and  free  from  the  character  of  a  trust,  the  slight- 
est  defect  will  invalidate  the  execution.2  But  if  the  power 
is  special,  or  the  execution  is  a  trust  and  a  peremptory  duty 
upon  the  donee,  or  if  the  donee  has  received  a  valuable  con- 
sideration for  the  appointment,  equity  will  correct  or  make 
good  the  defective  execution'  by  ordering  a  re-execution, 
provided  there  has  been  a  substantial  compliance  with  the 
conditions  of  execution,  and  the  defect  relates  to  the  for- 
malities of  execution,  such  as  the  number  of  attesting  wit- 
nesses, the  technical  words  of  limitations,  or  conveyance, 
etc.3 

§  574.  Non-execution.  —  But  if  the  donee  has  failed  alto- 
gether to  execute  the  power,  or  disregarded  the  material 
conditions  imposed  by  the  donor  upon  its  execution,  equity 
will  not  interfere  to  compel  an  execution,  unless  the  power 
be  a  trust,  the  execution  of  which  is  mandatory.  In  such 
a  case  equity  will  not  permit  any  accident  or  neglect  of  the 
donee  to  defeat  the  trust,  and  thus  deprive  the  beneficiaries 
of  their  rights  under  the  power.     All  mandatory  powers, 

i  2  Sugden  on  Pow.  243 ;  Co.  Lit.  271  b,  Butler's  note,  231 ;  Saunders  v. 
Evans,  8  H.  L.  Cas.  721. 

«  2  Sugden  on  Fow.  98;  Tud.  Ld.  Cas.  317. 

3  Story  Eq.  Jur.,  sects.  169-175 ;  2  Sugden  on  Pow.  88,  et  seq.;  4  Cruise  Dig. 
222,  et  seq.;  Cotter  v.  Layer,  2  P.  Wms.  622;  Toilet  r.  Tollett,  2  P.  Wms.  489  ; 
Schenck  v.  Ellenwood,  3  Edw.  Ch.  175;  Hunt  v.  Rousmaniere,  2  Mason,  251; 
Roberts  v.  Stanton,  2  Munf.  129 ;  MoRea  v.  Farrow,  4  Hen.  &  M.  444. 

454 


CH.  XV.]  POWERS.  §    575 

whether  general  or  special,  are  trusts,  and  courts  of  equity 
will  execute  such  powers,  even  if  the  donee  has  failed  to 
exercise  the  power,  and  died.  But  there  can  never  be  any 
interference  by  the  courts  with  discretionary  powers,  if  the 
donees  have  refused  to  exercise  them.1 

§  575.  Rules   of  perpetuity  applied  to   powers.  —  The 

rule  against  perpetuity  finds  application  both  to  the  limita- 
tions of  the  power  and  to  the  estates  created  under  the 
power.  If  the  power  can  be  exercised  only  at  a  time  be- 
yond that  within  which  all  limitations  must  take  effect  in 
possession,  viz.  :  a  life  or  lives  in  being  and  twenty-one 
years  thereafter,  the  power  is  void.  It  is,  therefore,  gen- 
erally necessary  to  place  a  limitation  upon  the  time  within 
which  the  power  may  be  exercised.  A  power  to  one  and 
his  heirs,  without  express  or  implied  limitation,  would  be 
void,  at  least  so  far  as  the  heirs  are  concerned.2  The  great- 
est difficulty  has  been  experienced  in  applying  the  rule 
against  perpetuity  to  the  estates  appointed  under  the  power. 
If  the  power  is  special,  and  the  appointment  is  limited  to  a 
person  or  to  persons,  none  of  whom  can  take  from  being 
too  remote  under  the  rule,  the  power  is  absolutely  void. 
But  if  the  power  permits  an  appointment  among  a  class, 
some  of  whom  can  take,  and  a  discretion  is  left  in  the  donee 
as  to  which  individuals  of  the  class  shall  be  appointed,  the 
power  will  be  void  as  to  those  who  cannot  take.  The  pos- 
sibility of  an  illegal  appointment  will  not  invalidate  the 
power,  if  it  is  in  the  end  properly  exercised  by  an  appoint- 
ment to  lawful  persons.3     In  determining  the  validity  of  an 

1  Story  Eq.  Jur.,  sects.  169-1 75, 1062  ;  2  Sugden  on  Pow.  88,  et  seq.;  4  Cruise 
Dig.  222,  et  seq.;  Gorin  v.  Gordon,  38  Miss.  214;  Neves  v.  Scott,  9  How.  196- 
213;  Sedgwick  v.  Laflin,  10  Allen,  432;  1  Sugden  on  Pow.  158. 

J  Bristow  v.  Warde,  2  Vcs.  350;  Ware  v,  Polhill,  11  Ves.  283. 

a  1  Sugden  on  Pow.  471-475;  2  Washb.  on  Keal  Prop.  672-675;  Co.  Lit. 
271  b,  Butler's  note,  231 ;  Gilbert's  Uses,  160  n;  Marlborough  v.  Godolphin 
2  Ves.  sr.  61 ;  Routledge  v.  Dorril,  2  Ves.  jr.  368 ;  Griffith  v.  Pownall,  13 
Sim.  393. 

455 


§    576  POWERS.  [part  II. 

appointment  under  a  special  power  in  respect  to  perpetuity,, 
the  appointment  must  be  viewed  in  its  relation  to,  and  as  a 
part  of,  the  original  instrument  creating  the  power,  and 
must  be  considered  in  the  light  of  the  circumstances  sur- 
rounding the  estate  and  the  parties  thereto,  when  the  origi- 
nal instrument  was  executed,  if  the  power  be  created  by- 
deed,  and  at  the  death  of  the  testator,  if  by  will.  Thus  a 
power  to  appoint  among  grandchildren  cannot  be  exercised 
in  favor  of  such  grandchildren,  whose  parents  were  not  in 
being  at  the  time  that  the  power  was  created.1  But  if  it  be 
a  general  power,  it  is  so  much  like  an  estate  in  fee,  in  re- 
spect to  the  restriction  against  alienation,  an  appointment 
will  be  good  if  at  the  time  when  the  power  was  exercised  it 
did  not  offend  the  doctrine  of  perpetuity.  The  validity  of 
an  appointment  under  a  general  power  is  determined  by  its- 
condition  when  made,  and  not  considered  as  a  part  of  the 
instrument  in  which  the  power  was  created.  An  appoint- 
ment under  such  a  power  to  unborn  children  of  parents  who 
are  in  esse  at  the  time  of  execution,  but  unborn  at  the  time 
of  creation  of  the  power,  would  be  good.  The  restriction 
upon  alienation  only  began  when  the  appointment  was  made.2" 

§  576.   Rights  of  donee's  creditors  in  the  power.  —  The 

power  not  being  an  estate  in  the  land,  if  the  donee's  credi- 
tors have  any  interest  in  the  same  or  in  the  estate  created 
under  the  power,  it  can  only  be  an  equitable  claim.  The 
donee's  creditors  have  no  legal  rights  in  the  power.3  Where 
the  power  is  general  and  coupled  with  an  interest,  a  sale  of 
the  interest  will  prevent  the  subsequent   exercise  of  the 

1  2  Washb.  on  Real  Prop.  671 ;  Co.  Lit.  271  b,  Butler's  note,  231 ;  1  Sugden 
on  Pow.  471-475;  2  Prest.  Abst.  165,  166;  Routledge  v.  Dorril,  2  Ves.  jr. 
357 ;  Hockley  v.  Mawbey,  1  Ves.  jr.  150. 

2  2  Wasbb.  on  Real  P«*op.  671 ;  Fearne's  Exec.  Dev.  5,  Powell's  note;  1 
Sugden  on  Pow.  516. 

s  Blake  v.  Irwin,  3  Kelly,  345;  Johnson  v.  Cusbing,  15  N.  H.  298;  Town- 
send  v.  Windham,   2  Ves.  jr.  3;  Covendale  v.  Aldrioh,  19  Pick.  391. 

456 


CH.  XV.]  POWERS.  §    577 

power.1  In  no  case  can  the  donee's  creditors  acquire  an 
interest  in,  or  prevent  the  execution  of  a  special  power.  It 
is  also  definitely  settled  that  where  the  donee  has  not  exer- 
cised his  general  power,  there  is  no  interest  in  the  donee  to 
which  the  rights  of  creditors  may  attach.2  Nor  can  the 
creditors,  through  their  assignee  in  bankruptcy,  under  the 
bankrupt  law  of  18G7,  execute  the  power  for  their  benefit.3" 
But  it  has  been  held  that  where  the  appointment  is  made 
under  the  power  to  a  voluntary  appointee,  the  creditors  may 
levy  upon  the  estate  in  the  appointee's  hands  ;  and  that  the 
appointee  always  takes  the  estate  subject  to  the  payment  of 
the  donee's  debts,  if  the  donee  might  have  exercised  the 
power  in  favor  of  his  creditors.4  Since  the  creditors  have 
no  interest  in  the  power  itself,  and  cannot  execute  it  or 
compel  its  execution  in  their  favor;  and  since  the  donee 
never  had  any  other  interest  in  the  property  except  the 
power,  and  the  estate  of  the  appointee  passed  to  him  di- 
rectly from  the  donor,  it  is  difficult  to  understand  by  what 
course  of  reasoning  the  position  of  these  two  courts  can  be 
sustained. 

§  577.  The  rights  of  creditors  of  the  beneficiaries. — 

As  a  matter  of  course,  if  a  special  power  or  trust  is  exer- 
cised, the  judgment-creditors  may  levy  upon  the  benefi- 
ciary's share  in  the  proceeds  of  sale.  But  they  cannot 
compel  the  donee  to  execute  the  power.5  And  if  the  leo-al 
title  descended  to  the  beneficiary,  subject  to  a  power  of 

»  Hobbs  v.  Smith,  15  Ohio  St.  419.     See  ante,  sect.  561. 

*  Tallmadge  v.  Sill,  21  Barb.  34;  Johnson  v.  Cushing,  15  N.  H.  298;  Lav- 
ender v.  Lee,  14  Ala.  688;  Strong  U.Gregory,  19  Ala.  146.  See  Thorpe  v. 
Goodall,  17  Ves.  jr.  338,  460;  Holmes  v.  Coghill,  12  Ves.  206;  Jenny  v  An- 
drews, 6  Madd.  264. 

fc  Jones'  Assignee  v.  Clifton,  U.  S.  Oir.  CtDist.  of  Kentucky  (1878),  7  Cent- 
L.  if.  89. 

*  Johnson  v.  Cushing,  15  N.  H.  298 ;  Tallmadge  v.  Sill,  21  Barb.  34. 

*  Chew's  Ex'ors  v.  Chew,  28  Pa.  St.  17. 

457 


§    577  POWERS.  [part  II. 

sale,  whatever  interests  the  beneficiary  s  creditors  and 
grantees  acquire  in  the  estate  will  be  defeated  by  the  sub- 
sequent exercise  of  the  power,  but  they  will  in  equity 
attach  at  once  to  the  beneficiary's  share  in  the  proceeds 
of  sale.1 

1  Allison  v.  Wilson  v.  Wilson's  Ex'ors,  13  Serg.  &  R.  330;  Eeed  v.  Under- 
hill,  12  Barb.  113. 

458 


CHAPTER  XVI. 

INCORPOREAL  HEREDITAMENTS. 

Section     I.  Rights  of  Common. 
II.  Easements. 

III.  Franchises. 

IV.  .Rente. 

Section  587.  Incorporeal  hereditaments  defined. 
588.  Kinds  of  incorporeal  hereditaments. 

§  587.  Incorporeal  hereditaments  denned.  — An  incor- 
poreal hereditament  is  a  right  of  an  intangible  nature  which 
descends  to  the  heir  like  corporeal  hereditaments.  It  is 
rather  a  right  in,  or  issuing  out  of,  a  corporeal  heredita- 
ment, than  a  right  to  or  of  such  kind  of  property.  The 
enjoyment  and  exercise  of  the  right  produces  substantial 
results,  but  the  results  are  to  be  distinguished  from  the 
right,  and  do  not  constitute  the  incorporeal  hereditament. 
The  Roman  jura  in  realieno  comprised  a  very  large  class  of 
those  rights,  which  are  in  our  law  comprehended  under  the 
term  incorporeal  hereditaments. 

§  588.  Kinds  of  ineorporeal  hereditaments.  —  Black- 
stone  mentions  nine  principal  classes  of  incorporeal  heredi- 
taments, viz. :  (1)  Commons;  (2)  Easements  ;  (3)  Rents; 
(4)  Advowsons;  (5)  Corodies  ;  (G)  Annuities;  (7)  Fran- 
chises;  (8)  Offices;  (9)  Dignities.  Of  these,  Commons, 
Easements,  Rents  and  Franchises  pertain  to  this  country. 
The  others  do  not  now,  if  they  ever  did,  exist  here,  and  can 
very  well  be  omitted.  In  presenting  this  subject  the  dis- 
cussion will  be  confined  to  I.  Rights  of  Common  ;  II.  Ease- 
ments; III.  Rents;  and  IV.  Franchises." 

2  Bla.  Com.  21. 

459 


SECTION  I. 

BIGHTS   OP    COMMON. 

Section  591.  Definition. 

592.  Kinds  of  rights  of  common. 

593.  Commons  appendant  and  appurtenant. , 

§  591.  Definition.  — A  right  of  common  is  a  right  which 
one  may  have  in  another's  land,  to  take  from  it  certain  sub- 
stantial products,  which  constitute  a  part  of  the  realty  be- 
cause of  their  connection  therewith.  An  easement  is  also  a 
right  in,  or  issuing  out  of,  another's  land,  and  constitutes  a 
burden  upon  it,  as  will  be  seen  in  the  next  section;  but  it 
only  relates  to  such  modes  of  enjoyment  which  may  be  had 
without  drawing  from  it  anything  which,  in  contemplation 
of  law,  is  a  part  of  the  land.  A  right  of  common  is  known 
also  by  the  Norman  French  term  profit  a  prendre,  a  right  to 
take  something  from  the  land.  As  will  be  seen,  the  term 
right  of  common  has  lost  its  significance  in  this  country.  An 
easement  may  prevent  the  owner  of  adjacent  land  from 
building  so  near  the  boundary  as  to  exclude  the  light  and 
air  from  one's  residence,  or  it  may  consist  in  the  right  to 
keep  a  stream  free  from  obstruction  while  flowing  through 
the  adjoining  land  above  ;  but  light,  air  and  water  are  not 
a  part  of  the  realty,  and,  therefore,  one  cannot  have  a  right 
of  common  in  them.  Another  distinction  is  that  a  right  of 
common  does  not  impose  any  obligation  upon  the  owner  of 
the  land  to  maintain  a  supply  of  the  thing  taken,  while  an 
easement  may  contain  such  an  obligation.  Such  an  obliga- 
tion may  be  the  very  essence  of  the  easement.1 

§  592.  Kinds  of  rights  of  common.  —  There  are  four 
important  kinds  of  common,  viz. :    Common  of  pasture, 

1  2  Bla.  Com.  32. 
460 


§    593  RIGHTS    OF    COMMON.  [PART    II. 

piscary,  turbary  and  estovers.  Common  of  pasture  is  a 
right  of  pasturing  cattle  upon  the  land  of  another.  Common 
of  piscary  is  the  right  to  fish  in  the  streams  which  pass 
through  another's  land.  Common  of  turbary  consisted  in 
the  right  to  dig  turf  or  peat  for  use  as  fuel.  Of  the  same 
character  would  be  the  right  to  dig  coal  for  the  same  pur- 
pose. Common  of  estovers  was  a  right  of  the  same  nature, 
being  a  right  to  take  whatever  wood  is  necessary  for  use  on 
the  farm,  for  the  purpose  of  fuel,  repairing  the  ploughs  and 
other  agricultural  implements,  or  the  hedges  and  fences. 
According  to  the  use  to  which  the  wood  was  put,  they  were 
respectively  called  house-bote,  plough-bote  and  cart-bote, 
andhay-boteorhedge-bote.  The  enjoyment  of  these  rights 
of  estovers  was  limited  to  a  reasonable  degree,  and  the  wood 
could  be  used  only  as  far  as  it  was  necessary  for  the  pur- 
poses of  the  farm.1 

§  593.   Commons    appendant    and    appurtenant. — At 

common  law  rights  of  common  were  divided  into  two  classes, 
common  appendant,  and  common  appurtenant.  Common 
appendant  was  the  more  usual  kind.  It  arose  from  the 
peculiar  condition  of  the  English  tenantry,  and  more  espe- 
cially out  of  the  manor  system  of  holding  lands.  When 
the  lord  of  the  manor  rented  his  arable  land  to  his  tenant, 
he  gave  with  this  land  these  rights  of  common,  so  that  the 
tenant  would  be  able  to  obtain  everything  necessary  for  the 
successful  conduct  of  the  farm.  Thus  the  tenant  has  a 
right  to  pasture  his  cattle  upon  the  waste  land  of  his  lord, 
to  take  the  necessary  wood  from  the  forests,  etc.2  Com- 
mon appendant  does  not  exist  in  this  country,  except 
perhaps  in  connection  with  the  manors  on  the  banks 
of  the  Hudson  River  in  the  State  of  New  York.  Whatever 
commons  are  created  here  are  of  the  class  known  at  common 

]  2  Bla.  Com.  32-35.  *  2  Bla.  Com.  33. 

461 


CH.  XVI.]  RIGHTS    OF    COMMON.  §    593 

law  as  common  appurtenant,  or  in  gross.  They  rest  upon 
grant,  express  or  implied.  When  implied,  the  right  is  ac- 
quired by  prescription,  or  under  the  Statute  of  Limitations. 
Common  appurtenant  and  common  appendant  were  annexed 
to  some  land  held  by  the  person  enjoying  the  right,  while 
common  in  gross  was  to  a  man  and  his  heirs,  independent 
of  any  land  he  may  hold.1  The  subject  possesses  very  little 
importance  in  this  country,  and  inasmuch  as  commons  are 
now  created  in  the  same  manner  as  easements,  they  receive 
almost  the  same  construction.  The  subject,  therefore, 
needs  no  special  treatment  beyond  what  has  been  already 
said.     The  principal  American  cases  are  cited  below.2 

1  2  Bla,  Com.  33,  34. 

2  Knowles  v.  Nicholls,  2  Curt.  571;  Donnell  v.  Clark,  19  Me.  174;  Thomas 
v.  Mansfield,  13  Pick.  240;  Hall  v.  Lawrence,  2  K.  I.  218;  Smith  v.  Floyd, 
18  Barb.  522;  Perkins  v.  Perkins,  44  Barb.  134;  Van  Kensselaer  v.  Rad- 
cliffe,  10  Wend.  639;  Livingstone.  Ten  Broeck,  16  Johns.  14;  Bell  v.  Ohio  & 
Penn.  R.  R.  Co.,  25  Pa.  St.  161 ;  Hebert  v.  Lavalle,  27  111.  448;  Funkhouser  v. 
Langkopf,  26  Mo.  45. 

462 


section  n. 

EASEMENTS. 

Section  597.  What  are  easements. 

538.  "When  merger  takes  effect. 

599.  How  acquired. 

600.  Easements  by  express  grant. 

601.  Implied  grant. 

602.  Equitable  easements. 

603.  Easements  implied  from  covenant. 

604.  Eights  of  action  in  defence  of  easement. 

605.  How  easements  may  be  lost  or  extinguished. 

606.  Kinds  of  easements. 

607.  Eight  of  way. 

608.  A  private  way. 

609.  Ways  of  necessity. 

610.  Who  must  repair  the  way. 

611.  Public  or  highways. 

612.  Light  and  air. 

613.  How  acquired. 

614.  Eight  of  water. 

615.  Percolations  and  swamps. 

616.  Artificial  water  courses. 

617.  Easements  in  water  courses. 

618.  Eight  of  lateral  and  subjacent  support. 

619.  Implied  grant  of  lateral  support. 

620.  Party  walls. 

621 .  Double  ownership  in  buildings  —  Subjacent  support. 

622.  Legalized  nuisances. 

§  597.  What  are  easements.  —  As  has  been  explained  in 
distinguishing  between  commons  and  easements,  the  latter 
are  rights  of  enjoyment  in,  or  issuing  out  of,  another's 
land,  which  restrict  or  limit  the  owner's  right  of  enjoyment, 
either  affirmatively,  by  giving  another  person  a  right  to  use 
the  land  for  certain  purposes,  as,  for  example,  a  right  of 
passing  over  the  land,  or  negatively,  by  restraining  the 
owner  from  using  it  in  a  particular  manner,   such  as  the 

463 


■§    598  EASEMENTS.  [PART    II 

-erection  of  buildings  so  near  to  the  boundary  line  as  to  ex- 
clude the  light  and  air  from  the  residence  of  an  adjoining 
proprietor.  An  easement  can  only  exist  as  appurtenant  to 
an  estate  in  lands.  Two  estates  are  thereby  brought  into 
relation  with  each  other,  and  the  existence  of  both  is  neces- 
sary to  the  maintenance  of  an  easement.  They  are  called 
the  dominant  and  servient  estates.  The  dominant  estate  is 
the  one  enjoying  the  easement,  and  to  which  it  is  attached  ; 
the  servient  estate  is  the  one  upon  which  the  easement  is 
imposed.  As  appurtenant  to  the  dominant  estate,  the  ease- 
ment passes  with  it  into  whose  hands  soever  the  land  may 
come.     The  easement  cannot  be  severed  from  it. 

§  598.  When  merger  takes  effect. — When  the  dominant 
estate  falls  into  the  possession  of  the  owner  of  the  servient 
estate,  the  easement  is  extinguished  if  the  two  estates  are 
eo-equal  and  co-extensive,  since  no  man  can  have  an  ease- 
ment in  his  own  land.1  If  the  title  to  either  of  the  estates 
proves  defective,  the  easement  is  only  suspended  while  the 
two  estates  are  in  the  possession  of  the  one  owner.2  So  if 
the  dominant  estate,  which  is  transferred  to  the  owner  of  the 
servient  estate,  is  less  in  point  of  duration  than  the  servient, 
the  easement  will  only  be  suspended  during  the  union  of 
the  two  estates,  and  will  revive  upon  their  separation.3  And  it 
may  be  stated  generally  that,  wherever  the  extinguishment  of 
an  easement  will  operate  as  an  injury  to  some  one  having 
rights  in  the  same,  equity  will  limit  the  effect  of  the  union 
of  the  estates  to  suspension  during  such  union,  and  the  ease- 
ment will  revive,  in  favor  of  the  parties  having  rights  in  it, 
at  the  termination  of  the  union. 

1  Atwater  v.  Bodfish,  11  Gray,  150;  Wolfe  v.  Frost,  4  Sandf.  Ch.  71 ;  Sey- 
mour v.  Lewis,  11  N.  J.  450. 

2  Tyler  v.  Hammond,  1 1  Pick.  193. 

3  Grant  v.  Chase,  17  Mass.  443;  Carbrey  v.  Willis,  7  Allen,  374;  Brakelyr. 
Sharp,  6  N.  J.  Eq.  9 ;  McTavish  v.  Carroll,  7  Md.  352 ;  Pearce  v.  McClenaghan, 
■S  Rich.  178. 

464 


OH.  XVI.]  EASEMENTS.  §    GOO 

§  599.  How  acquired.  —  Easements  are  acquired  by 
grant,  express  or  implied,  or  by  prescription,  which  pre- 
supposes a  grant.  The  doctrine  of  prescription  as  known 
at  the  common  law  is  no  longer  in  practical  operation.  It 
has  been  superseded  by  Statutes  of  Limitation,  which  fix  a 
time  in  which  a  right  may  be  acquired  by  adverse  possession 
or  enjoyment.  The  subject  of  title  by  prescription  or  lim- 
itation will  be  treated  more  fully  in  subsequent  pages. 
These  Statutes  of  Limitations  do  not  in  express  terms  refer 
to  easements,  but  courts  have  generally  applied  to  easements 
their  provisions  concerning  rights  in  real  property.  It  is, 
therefore,  a  general  rule  that  a  right  of  easement  is  acquired 
by  prescription  within  the  time  prescribed  by  the  Statute  of 
Limitation  for  the  recovery  of  lands.1  But  since  the  appli- 
cation of  the  statute  to  the  case  of  easements  rests  upon 
analogy,  the  statutory  period  has  been  held  to  raise  only  a 
legal  presumption  that  a  grant  has  been  made,  and  does  not 
operate  as  a  legal  bar.  The  presumption  can  be  rebutted 
in  evidence,  showing  that  there  had  been  no  grant.2  But 
the  rule  is  not  uniform,  there  being  cases  which  hold  that 
it  is  a  conclusive  presumption.3 

§  600.  Easements  by  express  grant  —  Are  created  by 
deed,  containing  an  express  reservation  of  the  right.  It 
cannot  be  created  by  parol.4     It  need  not  be  reserved  in 

1  Campbell  v  Wilson,  3  East,  294;  Richard  v.  Williams,  7  Wheat.  59; 
Stearns  v.  Jones,  12  Allen,  582;  Watkins  v.  Peck,  13  N.  H.  360;  Hammond 
v.  Zechner,  21  N.  Y.  118;  Jones  v.  Crow,  32  Pa.  St.  398;  Carlisle  v.  Cooper, 
19  N.  J.  Eq.  256. 

2  Tinkham  v.  Arnold,  3  Me.  120;  Parkers.  Foote,  19  Wend.  309;  Sherwood 
v.  Burr,  4  Day,  244. 

3  Beasley  v.  Shaw,  6  East,  208;  Wright  v.  Howard,  1  Sim.  &  S.  190;  Tyler 
•v.  Wilkinson,  4  Mason,  397 ;  Sargent  v.  Ballard,  9  Pick.  255 ;  Garrett  v.  Jack- 
son, 20  Pa.  St.  881.  It  is  probable  that  this  may  now  be  considered  as  the  gen- 
erally prevailing  law. 

*  Brown  on  Statute  of  Frauds,  sect.  232 ;  Bryan  v.  Whistler,  8  B.  &  C.  288 ; 
Knight  ».  Tver,  57  Me.  174;  Tramraell  v.  Trammell,  11  Rich.  474;  Fuhr  v. 
Dean,  26  Mo.  110. 

30  405 


§    601  EASEMENTS.  [PART   II. 

the  same  deed  which  creates  or  conveys  the  dominant  es- 
tate; it  may  be  granted  in  a  separate  deed.1  It  may  also  be 
created  in  a  deed  conveying  the  servient  estate  by  reservation 
to  the  grantor.2  For  the  creation  of  an  easement  by  express 
grant  upon  one  estate  in  favor  of  another,  there  need  not 
be  any  prior  unity  of  title  or  estate  in  the  two  parcels  of 
land.  There  need  not  be  any  previous  connection  whatever 
between  the  two  estates  or  their  owners.3 

§  601.  Implied  grants.  —  An  easement  is  created  by 
implied  grant  wrhere  the  easement  is  so  essential  to  the  en- 
joyment of  the  estate  granted,  that  it  is  necessary  to  be  im- 
plied to  prevent  the  conveyance  from  operating  as  an  injury 
to  the  grantee.  Thus,  if  a  man  conveys  a  parcel  of  land, 
surrounded  on  all  sides  by  his  own  land,  so  that  the  grantee 
cannot  get  to  the  land  conveyed,  except  by  passing  over 
the  other  lands  of  the  grantor,  the  law  implies  that  a  right 
of  way  over  such  lands  was  granted  in  the  deed.4  What 
shall  be  considered  such  a  necessity  as  will  raise  an  ease- 
ment by  implication  depends  upon  the  facts  of  each  partic- 
ular case.  It  is  a  well  established  rule  that  the  necessity 
need  not  be  absolute.  If  the  enjoyment  of  the  estate 
granted  cannot  be  complete  without  the  easement,  except  at 
an  unusual  expense,  or  inconvenience,  the  easement  will  be 
implied.5  The  enjoyment  of  the  land  without  the  easement 
need  not  be  absolutely  impossible.  Thus,  in  the  case  of  a 
right  of  way,  it  is  not  necessary  that  the  land  should  be 
entirely  surrounded,  in  order  to  create  by  implication  an 

1  Gerrard  v.  Cook,  2  Bos.  &  P.  N.  R.  109;  Holms  v.  Sellers,  3  Lev.  305. 

2  Pettee  v.  Hawkes,  13  Pick.  323. 

3  Gibert  v.  Peteler,  39  N.  Y.  165. 

*  Pomfret  v.  Ricord,  1  Saund.  322 ;  Proctor  v.  Hodgson,  10  Exch.  624.  See 
post, -sect.  609. 

5  O'Rorke  v.  Smith,  11  R.  I.  259;  s.  c,  23  Am.  Rep.  440;  Carbrey  v.  "Wil- 
lis, 7  Allen,  364 ;  Johnson  v.  Jordan,  2  Mete.  234 ;  Plimpton  v.  Converse,  42 
Vt  712 ;  Suffield  v.  Brown,  33  L.  J.  (n.  s.)  Ch.  249;  s.  c,  10  Jur.  (n.  s.)  111. 
466 


CH.  XVI.]  EASEMENTS.  §    602 

easement  of  way  over  the  grantor's  lands  ;  it  will  be  suffi- 
cient if  the  land  granted  is  to  such  an  extent  surrounded, 
that  the  grantee  can  get  to  it  only  with  great  difficulty  and 
inconvenience. 

§  602.  Equitable  easements.  —  Corresponding  to,  and 
forming  a  part  of,  the  subject  of  implied  easements,  is  the 
doctrine  of  equitable  easements.  At  law  it  is  impossible 
for  an  easement  to  exist  between  two  estates  owned  by  the 
same  person.  If  the  two  parcels  had  had  separate  owners 
upon  the  union  of  them  in  the  one  owner,  as  we  have  seen, 
the  easement  would  at  least  be  suspended  during  the  con- 
tinuance of  such  union  and  revive  upon  their  separation. 
The  easement  would  revive  only  when  the  dominant  and  servi- 
ent estates  were  of  unequal  value  in  the  matter  of  duration.1 
But  notwithstanding  the  fact  that  at  law  there  can  be  no 
easement  in  favor  of  one  parcel  imposed  upon  another,  both 
being  held  by  the  same  owner,  yet  in  equity  such  a  relation 
may  exist.  If  the  owner  of  two  parcels  so  uses  them  as  to 
make  one  servient  to  the  other,  as,  for  example,  in  the 
construction  of  a  drain  carrying  waste  water  from  one  estate 
over  the  other,  in  equity  an  easement  will  be  imposed  upon 
one  lot  in  favor  of  the  other,  which,  upon  the  severance  of 
ownership  by  alienation,  assumes  the  character  of  a  legal 
easement.'2  Especially  does  an  easement  arise  when  the 
quasi  dominant  estate  is  granted  to  another.  If  the  quasi 
servient  estate  has  been  conveyed,  it  is  a  question  of  some 
doubt  whether  there  is  reserved  to  the  grantor  by  implica- 
tion an  easement  to  maintain  the  drain  or  other  burden  upon 

1  See  ante,  sect.  598. 

2  Pyer  v.  Carter,  40  Eng.  L.&  Eq.410;  Guy  v.  Brown,  5  Moore,  644;  John- 
son v.  Jordan,  2  Mete.  234 ;  Kenyon  v.  Nichols,  1  E.  I.  411;  New  Ipswich 
Factory,  v.  Batcheldor,  3  N.  H.  190;  Brakely  v.  Sharp,  9  N.  J.  Eq.  9;  a.  c,  10 
N.  J.  Eq.  206;  Kieffer  v.  Inihoff,  26  Pa.  St.  438;  McTavish  v.  Carroll,  7  Md. 
862 ;  .Junes  *;.  Jenkins  34  M<1.  1 ;  6  Am.  Rep.  300;  Lampman  v.  Milks,  21  N. 
Y.  505;  Hubbard  v.  Town,  33  Vt.  295;  Gerber  v.  Grubell,  16  111.  217 

467 


§    603  EASEMENTS.  [PART   II. 

the  granted  estate.  The  authorities,  English  and  American, 
are  at  variance  on  this  question.  In  this  country  the  better 
opinion  is  that  the  rule  would  be  the  same  as  in  the  case  of 
the  conveyance  of  the  quasi  dominant  estate,1  if  it  was 
strictly  necessary  to  the  enjoyment  of  the  dominant  estate, 
and  the  existence  of  the  easement  is  apparent  or  known  to 
the  grantee. 

§  603.  Easement  implied  from  covenant.  —  Somewhat 
similar  are  the  cases  where,  in  the  conveyance  of  sev- 
eral parcels  of  land  to  different  grantees,  the  grantor 
imposes  a  restriction  upon  the  use  and  mode  of  enjoyment 
of  the  land  so  granted,  which  creates  a  mutual  benefit  to  the 
owners  of  the  several  parcels.  Even  though  the  restriction 
be  in  the  form  of  a  covenant,  equity  will  construe  it  to  have 
the  binding  force  of  an  easement,  and  will  sustain  an  action 
for  its  enforcement  in  favor  of  any  one  of  the  owners. 
They  are  covenants  running  with  the  land,  and  can  be  en- 
forced by  any  one  in  whose  possession  any  one  of  the  par- 
cels should  fall.  Such  would  be  the  case  where,  in  granting 
several  parcels  of  land,  the  conveyances  contain  covenants 
that  any  buildings  thereafter  erected  upon  any  one  of  them 
shall  be  set  back  from  the  street  a  certain  distance.  An 
injunction  would  be  granted  at  the  suit  of  either  of  the 
owners  of  the  several  pieces  of  property  restraining  another 
from  violating  the  covenant.2 

1  Warren  v.  Blake,  54  Me.  289 ;  Johnson  v.  Jordan,  2  Mete.  234 ;  Carbrey 
v.  Willis,  7  Allen,  369;  Kandall  v.  McLaughlin,  10  Allen,  366  ;  Keats  v.  Hugo, 
115  Mass.  204;  15  Am.  Kep.  80;  Butterworth  U.Crawford,  46  N.  Y.  349;  7 
Am.  Rep.  352;  Parsons  v.  Johnson,  68  N.  Y.  62;  23  Am.  Rep.  149;  Haver- 
stick  v.  Sipe,  33  Pa.  St.  368;  McCarty  v.  Kitchenman,  47  Pa,  St.  243;  Powell 
v.  Simms,  5  W.  Va.  1 ;  13  Am.  Rep.  629 ;  Turner  v.  Thompson,  58  Ga.  268; 
24  Am.  Rep.  297;  Mullen  v.  Strieker,  19  Ohio  St.  135;  2  Am.  Rep.  379;  Mor- 
rison v.  Marquardt,  24  Iowa,  35.  But  see  Jones  v.  Jenkins,  34  Md.  1 ;  6  Am. 
Rep.  300;  Hubbard  v.  Town,  33  Vt.  295;  Gerber  v.  Grubell,  16  111.217. 

2  Whatman  v.  Gibson,  9  Sim.  196;  Harrison  v.  Good,  L.  R.  11  Eq.  338; 
Parker  v.  Nightingale,  6  Allen,  341 ;  Hubbell  v.  Warren,  8  Allen,  173;  Greene 

468 


CH.  XVI. J  EASE31ENTS.  §    605 

§  604.  Rights  of  action  in  defence  of  easements.  — The 

actions  are  of  two  kinds,  ( 1 )  by  injunction  or  by  mandamus, 
restraining  some  future  injury  or  impairment  of  the  ease- 
ment, or  enforcing  the  performance  of  the  conditions  of 
such  easement,  and  (2)  an  action  for  damages  for  the  ob- 
struction to,  or  interference  with,  the  easement  which  has 
already  happened.1  And  in  order  to  sustain  the  action  for 
damages,  no  actual  damage  need  be  proven.  It  would  be 
an  injuria  sine  damno,  or  wrong  without  a  damage,  which 
is  always  actionable. 

§  605.   How  easements  may  be  lost  or  extinguished. — 

This  may  occur  (1)  by  acts  of  the  owner  of  the  dominant 
estate,  or  (2)  by  acts  of  the  owner  of  the  servient  estate. 
An  easement  may  be  released  by  deed  of  the  owner  of  the 
dominant  estate,  or  it  may  be  lost  by  abandonment.  It 
cannot  be  released  by  parol  agreement,  unless  the  agreement 
is  carried  into  execution  by  some  affirmative  act,  as  the 
creation  of  a  new  easement  in  the  place  of  the  old  one,  so 
that  by  non-user  the  first  has  been  lost.2     Mere  non-user, 

v.  Creigliton,  7  R.  I.  1;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72;  Tallmadge  v.  East 
River  Bk.,  26  N.  Y.  105;  Brewer  v.  Marshall,  19  N.  J.  Eq.  543;  Winfield  v. 
Henning,  21  N.  J.  Eq.  188;  Clark  v.  Martin,  49  Pa.  St.  290;  St.  Andrew's 
Church  Appeal,  67  Pa.  St.  518.  In  the  same  manner  a  covenant  to  build  and 
maintain  a  party  wail,  if  the  wall  has  been  constructed,  will  operate  as  an  ease- 
ment. Richardson  v.  Tobey,  121  Mass.  457 ;  23  Am.  Rep.  283.  But  an  exec- 
utory agreement  or  covenant  to  build  a  party  wall  cannot  operate  as  an 
easement,  since  such  a  covenant  does  not  run  with  the  land,  and  is  binding 
only  upon  the  covenantor.     Cole  v.  Hughes,  54  N.  Y.  444;  13  Am.  Rep.  611. 

1  2  Washb.  on  Real  Prop.  339;  Tud.  Ld.  Cas.  129. 

2  Liggins  v.  Inge,  7  Bing.  682;  Ward  v.  Ward,  7  Exch.  838;  Stokes  v. 
Hewsinger,  8  E.  &  B.  811  ;  Mooro  v.  Rawson,  3  B.  &  C.  332 ;  Regina  v.  Chor- 
ley,  12  Q.  B.  515;  Corning  v.  Gould,  16  Wend.  531;  Jewett  v.  Jewett,  16 
Barb.  150;  Jackson  v.  Dysling,  2  Caines,  20;  Smyles  v.  Hastings,  22  N.  Y. 
217 ;  Arnold  v.  Stevens,  24  Pick.  106  ;  Williams  v.  Nelson,  23  Pick.  141 ;  French 
v.  Braintree  Manf.  Co.,  23  Pick.  216 ;  Jennison  v.  Walker,  11  Gray,  423 ;  Pope 
v.  Devereux,  5  Gray,  409;  Hayford  v.  Spokesfield,  100  Mass.  491  ;  Manning  v. 
Smith,  6  Conn.  289 ;  Mowry  v.  Sheldon,  2  R.  I.  369 ;  Dyer  v.  Depui,  5  Whart 

469 


§    605  EASEMENTS.  [PART   II. 

even  though  for  twenty  years,  will  not  of  itself  extinguish 
the  easement.  It  must  be  accompanied  with  the  express  or 
implied  intention  of  abandonment,  and  the  owner  of  the 
servient  estate,  acting  upon  the  intention  of  abandonment 
and  the  actual  non-user,  must  have  incurred  expenses  upon 
his  own  estate.  The  three  elements,  non-user,  intention  to 
abandon  and  damage  to  the  owner  of  the  servient  estate, 
must  concur  in  order  to  extinguish  the  easement.  In  cases 
of  easements  created  by  prescription  the  last  element  is  not 
considered  essential.  The  easement  may  also  be  destroyed 
when  the  owner  of  the  dominant  estate  gives  a  license  to 
the  owner  of  the  servient  estate  to  perform  or  do  certain 
acts  upon  the  servient  estate,  the  performance  of  which 
will  effectually  prevent  the  enjoyment  of  the  easement. 
The  execution  of  the  license  will  destroy  or  extinguish  the 
easement,  since  the  license  is  irrevocable  after  execution.1 
Finall}r,  any  actions  on  the  part  of  the  owner  of  the  domi- 
nant estate,  which  increase  the  burden  upon  the  servient 
estate  and  which  so  materially  change  the  easement,  as  that 
it  cannot  be  restored  to  its  original  condition,  will  operate 
in  a  discharge  of  the  servient  estate  from  the  burden  of  the 
easement.  But  if  the  increase'in  the  burden  can  be  sepa- 
rated from  the  original  easement,  the  hitter  will  still  remain.2 
In  the  same  way  as  easements  may  be  acquired  by  prescrip- 
tion, so  may  they  also  be  lost  or  extinguished.  This  subject 
is  similar  in  its  character,  and  is  allied  to  the  subject  of  loss 
by  abandonment. 

584;  Hall  v.  McCnughey,  51  Pa.  St.  43 ;  Pue  v.  Pue,  4  Md.  Ch.  386;  Parkins 
v.  Dunham,  3  Strobh.  221;  Pence  v.  McClenaghan,  5  Rich.  178. 

1  Winters.  Brockwell,  8  E:ist,  308;  Lis™;ins  v.  Inge,  7  Bing.  682;  Dyer  d 
Sanford,  9  Mete.  395;  Addison  v.  Hack,  2  Gill,  221 ;  Elliott  ».  Rhett,  5  Rich. 
L.  405. 

2  Luttrell's  Case,  4  Rep.  87;  Saunders  v.  Newman,  IB.  &  Aid.  258;  Gar- 
ritt  v.  Sharp,   3  A.  &  E.   325;  Dlanchard  v.  Bridges,  4  A.  &  E.  170;  Hall  v. 
Swift,  6  Scott,  167  ;  Cherrington  v.  Abney  Mill,  2  Vern.  640;  Bullen  v.  Run- 
nells,  2  N.  H.  255 ;  Whittier  v.  Cochero  Mfg.  Co.,  9  N.  H.   454 ;  Taylor  v. 
Hampton,  4  McCord,  96. 

470 


CH.  XVI.]  EASEMENTS.  §    608 

§  606.  Kinds  of  easements.  —  The  easements  most  com- 
monly known  are  right  of  way,  light  and  air,  water,  sup- 
port, and  party  walls. ,  Many  other  servitudes  may  be 
imposed  upon  the  land,  but  a  discussion  of  the  classes  just 
mentioned  will  be  sufficient  to  illustrate  the  general  princi- 
ples. 

§  607.  Right  of  way.  —  Rights  of  this  character  are 
divided  into  private,  where  the  right  is  in  favor  of  one  or 
more  private  individuals,  and  is  appurtenant  to  an  estate 
owned  by  them,  and  public,  where  it  is  enjoyed  by  the 
public  generally.  They  are  easements  imposed  upon  an- 
other's land,  authorizing  certain  persons  or  the  public,  as 
the  case  may  be,  to  pass  over  it,  in  pursuit  of  specific  or 
general  objects. 

§  608.  A  private  way — May  be  created  by  express  grant, 
or  it  may  be  implied  from  the  circumstances  surrounding 
the  estate  granted  ( these  are  called  ways  of  necessity),  or  it 
may  further  be  acquired  by  prescription.  A  way  acquired 
for  a  particular  mode  of  use  will  not  be  extended  so  as  to 
include  the  right  to  use  it  in  some  other  manner.  Thus,  if 
the  right  be  limited  to  a  foot-path,  it  cannot  be  used  as  a 
carriage-way  or  horse-way.  Such  an  extension  of  the  right 
would  be  an  act  of  trespass,  and  render  the  owner  of  the 
dominant  estate  liable  for  damages  to  the  owner  of  the  ser- 
vient estate.  This  would  be  the  case,  even  though  the 
burden  upon  the  servient  estate  has  not  been  materially  in- 
creased.1 Neither  can  the  way  be  used  for  the  benefit  of 
any  other  estate  but  the  one  to  which  the   easement  is  ap- 

1  Brunton  v.  Hall,  1  Gale  &  D.  207 ;  Cowling  v.  Higginson,  4  Mees.  &  W. 
245 ;  Ballard  v.  Tyson,  1  Taunt.  279 ;  Allan  v.  Gourme,  11  A.  &  E.  759 ;  French 
».  Marstin,  24  N.  H.  440;  32  N.  H.  316;  Kirkham  v.  Sharp,  1  Whart.  323. 
But  a  general  right  of  way  will  be  inferred  from  evidence  that  the  way  has 
been  used  in  every  manner  necessary  for  the  full  enjoyment  of  the  dominant 
estate.    Parks  v.  Bishop,  120  Mass.  340;  21  Am.  Rep.  519. 

471 


§    GO 7  EASEMENTS.  [PART    II  „ 

purtenant.1  Where  the  way  is  acquired  by  express  or 
implied  grant,  the  owner  of  the  servient  estate  has  the  right 
to  lay  out  the  way  in  whatever  manner  will  be  most  con- 
venient to  him,  and  will  at  the  same  time  secure  to  the  owner 
of  the  dominant  estate  the  full  enjoyment  of  the  easement. 
But  if  the  owner  of  the  servient  estate  refuses  to  do  this, 
the  owner  of  the  dominant  estate  may  exercise  the  power. 
Once  the  way  has  been  laid  out,  it  cannot  be  changed  by 
either  party  without  the  consent  of  the  other.2 

§  609.  Ways  of  necessity. — Away  of  necessity  exists 
where  the  Land  granted  is  completely  environed  by  land  of 
the  grantor,  or  partially  by  his  land,  and  the  land  of  stran- 
gers. The  law  implies  from  these  facts  that  a  right  of  way 
over  the  grantor's  lands  was  granted  to  the  grantee  as  ap- 
purtenant to  the  estate.  Inasmuch  as  the  implication  is 
raised  from  the  existence  of  a  necessity,  the  easement  ex- 
pires with  the  cessation  of  the  necessity,  as,  for  example, 
when  a  new  way  is  acquired.3  When  such  a  necessity  exists 
as  will  create  by  implication  a  right  of  way,  is  a  question  of 
fact  determined  by  the  circumstances  of  each  particular 
case.  Mere  inconvenience  will  not  constitute  such  necessity. 
It  must  be  a  strict  necessity ;   but  excessive  expense  in  pro- 

1  Colchester  v.  Koberts,  4  Mees.  &  W.  769 ;  Williams  v.  James,  L.  R.  2  C. 
B.  580 ;  Northam  v.  Hurley,  1  E.  &  B.  665 ;  Senhouse  v.  Christian,  1  T. 
R.  560 ;  Garritt  v.  Sharp,  3  A.  &  E.  325 ;  Russell  v.  Jackson,  2  Pick.  574 ; 
Comstock  v.  Van  Deusen,  5  Pick.  163;  Davenport  v.  Lamson,  21  Pick.  72; 
French  v.  Marstin,  24  N.  H.  440;  32  N.  H.  316. 

2  Henning  v.  Burnett,  8  Exch.  187 ;  Northam  v.  Hurley,  1  E.  &  B.  665 ;  Gar- 
ritt v.  Sharp,  3  A.  &  E.  325;  Russell  v.  Jackson,  2  Pick.  574;  Jennison  v. 
Walker,  11  Gray,  426 ;  Holmes  v.  Seeley,  19  Wend.  507. 

3  Pettingill  v.  Porter,  8  Allen,  1 ;  Baker  v.  Crosby,  9  Gray,  421 ;  Vlial  «. 
Carpenter,  14  Gray,  126 ;  Kimball  v.  Cocheco  R.  R.  Co.,  27  N.  H.  448 ;  Abbott 
v.  Stewartstown,  47  N.  H.  258;  Pierce  v.  Selleck,  18  Conn.  321;  Simmons  v- 
Sines,  4  Keyes  (N.  Y.),  153;  N.  Y.  Life  Ins.,  etc.,  Co.  v.  Milnor,  1  Barb.  Ch. 
352 ;  Wissler  v.  Hershey,  23  Pa.  St.  333 ;  McTavish  v.  Carroll,  7  Md.  352 ; 
Thomas  v.  Bertram,  4  Bush,  317 ;  Brown  v.  Berry,  6  Coldw.  (Tenn.)  98. 

472  * 


CH.  XVI.]  EASEMENTS.  §    611 

curing  another  way  would  make  it  a  case  of  strict  neces- 
sity.1 

§  610.  Who  must  repair  the  way. — In  the  absence  of" 
an  express  agreement,  the  grantee  of  the  right  of  way  must 
keep  the  way  in  repair;  and  if  he  fails  to  do  so,  he  has  no 
right  to  use  other  adjacent  land  of  the  servient  estate  be- 
cause the  way  has  become  impassable.  But  the  obligation 
to  repair  may  by  covenant  be  imposed  upon  the  owner  of 
the  servient  estate.  In  such  a  case,  if  the  latter  violates  the 
agreement,  the  grantee  of  the  way  may,  if  it  is  necessary,, 
pass  over  the  adjoining  land  of  the  servient  estate.2 

§  611.  Public  or  highways.  —  Here  no  reference  is  made 
to  such  highways  where  the  fee  simple  title  to  the  land  is  in> 
the  State  or  municipal  corporation.  In  such  cases  there  can 
be  no  question  in  respect  to  easements.  This  section  relates 
to  such  cases  where  the  land,  over  which  the  highway  ex- 
tends, belongs  to  the  owners  of  the  contiguous  land,  and  a 
right  of  way  over  it  is  enjoyed  by  the  public.3  Such  high- 
ways are  established  either  by  dedication  by  the  owners  of 
the  land,  or  by  appropriation  by  the  State  under  the  right 
of  eminent  domain.  In  the  case  of  dedication  no  formal 
acts  are  necessary  to  the  creation  of  the  way.     Any  act  or 

1  Pettingill  v.  Porter,  8  Allen,  1 ;  Carbrey  v.  Wilson,  7  Allen,  364 ;  John- 
son v.  Jordan,  2  Mete.  234 ;  Brigham  v.  Smith,  4  Gray,  297  ;  Plimpton  v.  Con- 
verse, 42  Vt.  712;  O'Rorke  v.  Smith,  11  11.  I.  259;  23  Am.  Rep.  440;  Bartletfc 
v.  Prescott,  41  N.  H.  493 ;  McDonald  v.  Lindall,  3  Rawle,  492  ;  Ogden  v.  Grove, 
38  Pa.  St.  487 ;  Turnbull  v.  Rivers,  3  McCord,  131 ;  Screven  v.  Gregory,  8  Rich.. 
158;  Ramirez  v.  McCormick,  4  Cal.  245. 

2  Pomfret  v.  Ricord,  1  Saund.  323;  Bullard  v.  Harrison,  4  M.  &  S.  387^ 
Rider  v.  Smith,  3  T.  R.  766;  Doane  v.  Badger,  12  Mass.  65;  Jones  v.  Percival,. 
5  Pick.  485  ;  Hamilton  v.  White,  5  N.  Y.  9. 

3  The  right  of  .the  public  to  the  use  of  a  highway,  where  the  soil  or  bed  be- 
longs to  the  adjoining  owners,  is  not  strictly  an  easement ;  it  is  an  incorporeal 
hereditament  in  the  nature  ofixn  easement.  Since  the  subject  of  highways  ia 
not  to  be  treated  at  any  length,  it  is  discussed  in  this  connection  to  avoid  the.: 
necessity  of  a  separate  subdivision  of  this  chapter. 

473 


§    612  EASEMENTS.  [PART   II. 

acts  which  show  a  clear  intention  to  dedicate  the  land  to  the 
public  use  will  be  sufficient.1  A  highway  may  also  be  created 
by  custom,  as  from  long  use  by  the  public,  although  there 
had  been  no  dedication  by  the  owner.2  To  make  the  dedi- 
cation complete  and  binding  upon  the  public,  there  must  be 
an  acceptance  of  the  same.  But  continued  use  of  the  land 
in  conformity  with  the  dedication  will  be  sufficient  evidence 
of  acceptance.     A  formal  acceptance  is  not  necessary.3 

§  ()12.  Light  and  air.  — There  may,  like  a  right  of  way, 
be  an  easement  in  the  light  and  air  coming  from  over  the 
land  of  an  adjacent  owner,  which  would  prevent  its  obstruc- 
tion by  any  erections  upon  the  adjoining  land  near  the 
boundary  line.  Thus,  the  owner  of  a  house  may  acquire  an 
casement  in  the  adjoining  land  to  permit  the  f ree  passage  of 
light  and  air  through  his  windows.  This  easement,  in  its 
more  important  features,  resembles  the  right  of  way,  which 
has  been  already  discussed.  It  will  not,  therefore,  be  nec- 
essary to  present  in  detail  the  law  upon  the  subject.  Like 
the  right  of  way,  the  owner  of  the  dominant  estate  cannot 
do  anything  which  will  increase  the  burden  upon  the  ser- 

1  Pope  v.  Town  of  Union,  18  N.  J.  Eq.  282 ;  Hawley  v.  City  of  Baltimore, 
33  Md.  270 ;  Mayor,  etc.,  of  Macon  v.  Francklin,  12  Ga.  239 ;  Haynes  v.  Thomas, 
7  Ind.  38 ;  Trickey  v.  Schlader,  52  111.  78 ;  Mo.  Inst,  for  Blind  v.  How,  27  Mo. 
211 ;  Buchanan  v.  Curtis,  25  Wis.  99 ;  3  Am.  Rep.  23. 

2  Holt  v.  Sargent,  15  Gray,  97 ;  Compton's  Petition,  41  N.  H.  197 ;  Hughes 
v.  Providence  &  Worcester  R.  R.,  2  R.  I.  493 ;  Devenpeck  v.  Lambert,  44 
Barb.  596 ;  Holcraft  v.  King,  25  Ind.  352 ;  Louk  v.  Woods,  15  HI.  256 ;  Lew- 
aston  v.  Proctor,  27  111.  414 ;  Lemon  v.  Hayden,  13  Miss.  159 ;  Parrish  v.  Ste- 
vens, 1  Oreg.  59. 

3  Muzzey  v.  Davis,  54  Me.  361 ;  Cole  v.  Sprowle,  35  Me.  161 ;  Remington 
v.  Millard,  1  R.  I.  93 ;  State  v.  Atherton,  16  N.  H.  203  ;  Stevens  v.  Nashua,  46 
N.  H.  192 ;  Dodge  v.  Stacey,  39  Vt-  558 ;  Curtis  v.  Hoyt,  19  Conn.  154 ;  Requa 
v.  City  of  Rochester,  45  N.  Y.  129 ;  6  Am.  Rep.  52 ;  Pope  v.  Town  of  Union, 
18  N.  J.  Eq.  282;  Beach  v.  Frankenberger,  4  W.  Va.  712;  Day  r.AUender,  22 
Md.  511,;  State  v.  Carner,  5  Strobh.  217 ;  New  Orleans,  *etc,  R.  R.  v.  Move, 
39  Miss.' 374;  Pickett  v.  Brown,  18  La.  An.  560;  Gentleman  v.  Soule,  32  HI. 
271 ;  Rees  v.  Chicago,  38  111.  322  ;  Manderschid  v.  Dubuque,  29  Iowa,  73 ;  Bar- 
±eau  v.  West,  23  Wis.  416 ;  Buchanan  v.  Curtis,  25  Wis.  99 ;  3  Am.  Rep.  23. 

474 


CH.  XVI.]  EASEMENTS.  §    613 

vient  estate.  Any  act,  such  as  closing  windows  and  opening 
new  ones,  increasing  the  size  of  the  windows,  or  removing 
the  house,  which  operates  in  changing  or  increasing  the 
burden  upon  the  servient  estate,  will  destroy  the  ease- 
ment.1 

§  613.  How  acquired.  —  In  England  an  easement  of  light 
and  air  may  be,  and  is  generally,  acquired  by  prescription 
or  long  user.  An  uninterrupted  enjoyment  of  twenty  years 
will  be  sufficient  to  create  the  easement.  It  is  necessary, 
however,  that  there  should  be  a  building,  for  the  benefit  of 
which  the  easement  is  acquired.  There  can  be  no  such 
easement  in  favor  of  an  open  lot.  The  extent  of  the  ease- 
ment, therefore,  depends  upon  the  amount  of  enjoyment 
derived  from  it  during  the  period  of  prescription.2  During 
the  period  of  prescription  the  right  is  inchoate,  and  may  be 
defeated  by  the  erection  on  the  adjacent  land  of  any  struc- 
ture which  will  exclude  the  light  and  air,  and  interrupt  the 
adverse  enjoyment.  The  owner  of  the  adjoining  land  can- 
not be  prevented  from  imposing  such  barriers  to  the  acqui- 
sition of  the  easement.3  In  this  country  the  right  to  acquire 
the  easement  by  prescription  has  not  met  with  general  rec- 
ognition. On  the  contrary,  the  tendency  is  to  deny  the 
right  altogether.  At  the  present  day  the  courts  of  New 
Jersey,  Illinois,  and  Louisiana  are  the  only  ones  which  still 
uphold  this  doctrine,4  while  it  is  repudiated  by  the  other 

1  Luttrell's  Case,  4  Rep.  87 ;  Tud.  Ld.  Cas.  132, 133 ;  Cherrington  v.  Abney 
Mill,  2  Vera.  646;  Moore  v.  Rawson,  3  B.  &  C.  332;  Blanchard  v.  Bridges,  4 
A.  &  E.  176. 

2  Martin  v.  Goble,  1  Comp.  322;  Moore  v.  Rawson,  3  B.  &  C.  332;  Clark  v. 
Clark,  L.  R.  1  Ch.  10 ;  Roberts  v.  Macord,  1  Mo.  &  Rob.  230. 

3  Smith  v.  Kendrick,  7  C.  B.  515,  565;  Moore  v.  Rawson,  3  B.  &  C.  332; 
Chandler  v.  Thompson,  3  Camp.  82 ;  Pierce  v.  Fernald,  26  Me.  436 ;  Dyer  v. 
Sanford,  9  Mete.  395 ;  Ray  v.  Lynes,  10  Ala.  63. 

4  Robeson  v.  Pittenger,  2  N.  J.  Eq.  57 ;  Durel  v.  Boisblanc,  1  La.  An  407; 
Oerber  v.  Grubell,  16  111.  217. 

475 


§    614  EASEMENTS.  [PART   II. 

courts.1  It  is  possible,  however,  although  very  unusual,  to 
acquire  a  right  to  the  easement  of  light  and  air  by  express 
grant  in  any  State,  and  the  same  rules  of  construction  are 
applied  to  them  which  govern  in  cases  of  such  prescriptive 
rights  under  the  English  law.2 

§  614.  Right  of  water.  —  Where  a  stream  of  water  passes 
over  the  lands  of  two  or  more  adjacent  owners,  it  has  been 
established,  upon  the  doctrine  of  law  that  there  can  be  no 
right  of  property  in  water  except  as  to  its  use,  that  the  ad- 
jacent owners  have  mutual  easements  upon  the  soil  of  each 
other  for  the  free  and  unrestricted  flow  of  the  water.  This 
rule,  however,  applies  in  its  full  force  only  to  the  natural 
streams.  The  riparian  owners  have  the  right  to  use  the 
water  to  a  reasonable  extent,  but  cannot  so  use  it  as  to  di- 

1  Collier  v.  Pierce,  6  Gray,  18 ;  Rogers  v.  Sawin,  10  Gray,  376 ;  Carrig  v. 
Dee,  14  Gray,  583;  Paine  v.  Boston,  4  Allen,  169;  Keats  v.  Hugo,  115  Mass. 
204;  15  Am.  Rep.  80;  Mahan  v.  Brown,  13  Wend.  263;  Banks  v.  Am.  Tract. 
Soc.,  4  Sandf.  Ch.  438;  Parker  v.  Foote,  19  Wend.  309;  Pierce  v.  Fernald,  2ft 
Me.  436;  Ingraham  v.  Hutchinson,  2  Conn.  597;  Hubbard  v.  Town,  33  Vt. 
295 ;  Haverstick  v.  Sipe,  33  Pa.  St.  368 ;  Hoy  v.  Sterritt,  2  Watts,  331 ;  Cberry 
v.  Stein,  11  Md.  1,  overruling  Wright  v.  Freeman,  5  H.  &  John.  477;  Napier 
v.  Bulwinkle,  5  Rich.  311,  overruling  McCreudy  v.  Thompson,  Dudley,  131; 
Turner  v.  Thompson,  58  Ga.  268;  24  Am.  Rep.  497;  Ward  v.  Neal,  37  Ala. 
501,  overruling  Ray  v.  Lynes,  10  Ala.  63;  Mullen  v.  Strieker,  19  Ohio  St. 
135;  2  Am.  Rep.  379;  Morrison  v.  Marquardt,  24  Iowa,  35.  In  some  of  the 
States  it  is  held  that,  where  one  person  owns  two  contiguous  lots,  and  sells 
one  of  them,  which  has  a  building  on  it  with  windows  opening  on  the  remain- 
ing lot,  an  easement  passes  to  the  grantee  to  have  free  passage  of  light  and 
air  over  the  adjoining  lot.  Jones  v.  Jenkins,  34  Md.  1 ;  6  Am.  Rep.  1;  Hub- 
bard v.  Town,  33  Vt.  295;  Lampman  v.  Milks,  21  N.  Y.  505;  Gerber  v.  Gru- 
bell,  16  111.  217.  But  this  rule  is  repudiated  by  some  of  the  other  courts. 
Keats  ■u.Hugo,  115  Mass.  204;  15  Am.  Rep.  80;  Haverstick  v.  Sipe,  33  Pa. 
St.  368;  Mullen  v.  Strieker,  19  Ohio  St.  135;  2  Am.  Rep.  379;  Morrison  v. 
Marquardt,  24  Iowa,  35.  Perhaps  the  better  rule  is,  that  such  an  easement 
will  be  implied  from  the  existence  of  windows  overlooking  the  other  lot  of 
the  grantor,  only  when  it  is  really  necessary  to  the  enjoyment  of  the  estate 
granted.  Powell  v.  Simmes,  6  W.  Va.  1 ;  13  Am.  Rep.  629 ;  Turner  v. 
Thompson,  58  Ga.  268 ;  24  Am.  Rep.  497. 

2  Mahan  v.  Brown,  13  Wend.  263 ;  McCready  v.  Thompson,  Dudley  (S.  C), 
113.     See  also  cases  cited  in  preceding  note. 

476 


OH.  XVI.]  EASEMENTS.  §    614 

minish  the  flow,  corrupt  the  water,1  or  to  dam  it  up,  and 
cause  an  overflow  of  the  land  above  to  diminish  the  volume 
of  the  stream  below.2  The  stream  cannot  be  diverted  from 
its  regular  course,  if  by  so  doing  injury  results  to  the  own- 
ers above  or  below.3  To  what  extent  the  water  may  be  used 
by  a  riparian  owner  depends  upon  the  circumstances  of  each 
case.  And  the  only  general  rule  which  can  be  stated  is, 
that  it  must  not  be  so  used  as  to  produce  a  perceptible  dam- 
age to  the  other  proprietors.4  The  detention  of  water,  if 
it  is  for  a  reasonable  use,  will  not  be  actionable,  even  though 
it  may  cause  injury  to  the  proprietors  below.     But  if  the 

1  "Washburn  v.  Gilman,  64  Me.  163;  18  Am.  Rep.  246;  Richmond  Manuf. 
Co.  v.  Atlantic  DeLaine  Co.,  10  R.  I.  106 ;  14  Am.  Rep,  658;  Jacobs  v.  Allard, 
42  Vt.  303;  1  Am.  Rep.  331.  But  pollution  of  the  water  of  a  stream  by  the 
sewage  is  not  actionable  against  the  city,  unless  the  pollution  results  from 
a  negligent  construction  or  use  of  the  sewers.  The  city  is  not  responsible  in 
damages,  if  it  is  the  result  of  a  defective  plan  of  sewerage.  Merrifield  v.  City 
of  Worcester,  110  Mass.  211 ;  14  Am.  Rep.  592. 

2  Sampson  v.  Hoddinott,  1  C.  B.  (n.  s.)  590;  Colburn  v.  Richards,  13  Mass. 
420;  Anthony  v.  Lapham,  5  Pick.  175.  And  where  the  erection  of  a  dam  is 
authorized  by  legislative  enactment,  the  owner  of  the  dam  must  make  com- 
pensation to  all  riparian  proprietors,  who  have  been  injured  thereby.  Lee  v. 
Pembroke  Iron  Co.,  57  Me.  481 ;  2  Am.  Rep.  59 ;  Gray  v.  Harris,  107  Mass. 
492 ;  9  Am.  Rep.  61 ;  Proctor  v.  Jennings,  6  Nev.  83 ;  3  Am.  Rep.  240. 

3  Elliott  v.  Fitchburg  R.  R.  Co.,  10  Cush.  191 ;  Macomber  v.  Godfrey,  108 
Mass.  219;  11  Am.  Rep.  349;  Tuthill  v.  Scott,  43  Vt.  525;  5  Am.  Rep.  301. 
Water  may  be  diverted  from  the  channel  for  any  reasonable  use,  but  it  can 
only  be  detained  as  long  as  it  is  necessary  and  reasonable,  and  it  must  be  re- 
turned to  the  channel,  before  it  passes  to  the  land  of  the  riparian  proprietor 
below.  Clinton  v.  Myers,  46  N.  Y.  511 ;  7  Am.  Rep.  373 ;  Arnold  v.  Foot,  12 
Wend.  330;  Miller  v.  Miller,  9  Pa.  St.  74;  Pool  v.  Lewis,  46  Ga.  162;  5  Am. 
Rep.  526. 

*  Mason  v.  Hill,  5  B.  &  Aid.1 1 ;  Embrey  v.  Owen,  6  Exch.  353 ;  Blanchard 
v.  Baker,  8  Me.  253 ;  Gerrish  v.  Brown,  51  Me.  256 ;  Anthony  v.  Lapham,  5 
Pick.  175;  Merrifield  v.  Lombard,  13  Allen,  16;  Weston  v.  Alden,  8  Mass. 
136;  Brace  v.  Yale,  97  Mass.  18;  Merritt  v.  Brinkerhoff,  17  Johns.  306;  Pollitt 
v.  Long,  58  Barb.  20 ;  Arnold  v.  Foote,  12  Wend.  330 ;  Clinton  v.  Myers,  46 
N.  Y.  511 ;  7  Am.  Rep.  373;  Jacobs  v.  Allard,  42  Vt.  303;  1  Am.  Rep.  331 ; 
Howell  v.  McCoy,  3  Rawle,  256  ;  Miller  v.  Miller,  9  Pa.  St.  74 ;  Webb  v.  Port- 
land Co.,  3  Sumn.  189;  Holeman  v.  Boiling  Spring  Co.,  14  N.  J.  Eq.  335; 
Dumont  v.  Kellogg,  29  Mich.  420 ;  18  Am.  Rep.  102. 

477 


§    615  EASEMENTS.  [PART   II. 

use  be  an  unusual  one,  then  it  is  not  likely  that  the  rule 
would  apply.1  This  rule  is  well  established  in  favor  of  mill 
owners,  the  working  of  whose  mills  by  the  water  prevents 
its  use  for  a  similar  purpose  by  a  riparian  proprietor  below. 
The  right  to  run  a  mill  in  such  cases,  and  to  clam  up  the 
water  for  that  purpose,  depends  upon  the  priority  of  estab- 
lishment. He  who  first  creates  a  mill  upon  the  banks  of 
the  stream  obtains  a  prior  right  to  the  use  of  the  stream 
for  that  purpose,  and  if  the  quantity  of  water  is  not  suffi- 
ciently large  to  permit  the  running  of  more  than  one  mill, 
no  other  mill  can  be  erected.  If  a  second  mill  is  erected 
by  a  proprietor  above,  and  the  diversion  and  detention  of 
water  for  the  purposes  of  the  mill  are  so  great  as  to  diminish 
materially  the  supply  of  water  to  the  first  mill,  the  owner 
of  the  latter  can  enjoin  such  detention  or  diversion  of  the 
water.2  The  mill  owner  cannot,  under  any  circumstances, 
so  dam  up  the  water  as  to  cause  it  to  overflow  the  land 
above,  or  to  divert  it  from  the  proprietor  below,  although 
in  some  States  by  statute  mill  owners  are  permitted  to  in- 
flict such  injury  upon  the  adjoining  proprietors  by  the 
payment  of  compensation  in  the  way  of  damages,  the  as- 
sessment and  recovery  of  which  are  regulated  by  the 
statutes.3 

§  615.  Percolations  and  swamps. — The  above  state- 
ments are  only  applicable  to  what  are  known  in  the  law  as 
natural  water  courses.  There  must  be  a  regular  stream 
flowing  in  a  regular  channel,   whether  on  the  surface  or 


1  Springfield  v.  Harris,  4  Allen,  494;  Gould  v.  Boston  Duck  Co.,  13  Gray, 
443;  Clinton  v.  Myers,  46  N.  Y.  511 ;  7  Am.  Rep.  373;  Pool  v.  Lewis,  41  Ga. 
162 ;  5  Am.  Rep.  526. 

2  Liggins  v.  Inge,  7  Bing.  6S2 ;  Mason  v.  Hill,  5  B.  &  Ad.  1 :  Williams  v. 
Moreland,  2  B.  &  C.  910;  Beuley  v.  Shaw,  6  East,  209;  Aug.  on  Wat.  Cour. 
sects.  130,  135:  Carey  v.  Daniels,  8  Mete.  466;  Caknont  v.  Wliitaker,  3 
Rawle,  84. 

3  Washb.  on  Ease.,  en.  3,  sect.  5,  pi.  35-46;  Ang.  Wat.  Cour.,  sect.  482. 

478 


CH.  XVI.]  EASEMENTS.  §    615> 

under  grDund,  in  order  that  such  rights  may  be  claimed  in 
it.  If  the  water  constituted  a  swamp  upon  the  adjacent 
land,  which  flowed  in  no  fixed  channel,  or  if  it  percolated 
through  the  soil  from  one  tract  of  land  to  another,  the  rules 
enunciated  in  the  preceding  paragraph  do  not  apply.  The 
owner  of  the  land  may  draw  off  the  water  from  the  swamp, 
or  divert  the  percolation,  so  as  to  collect  the  water  in  a  well 
upon  his  own  land,  notwithstanding  it  results  in  serious  det- 
riment to  the  adjacent  proprietor.  But  if  the  owner  of  the 
land  is  actuated  by  malice,  as  where  he  pollutes  the  water, 
or  cuts  off  the  underground  current,  simply  for  the  purpose 
of  rendering  his  neighbor's  well  useless,  an  action  would  lie 
for  the  damage  thus  inflicted.1  And  in  draining  one's  land 
of  surface  water,  no  action  will  lie  if  it  be  allowed  to  flow 
over  the  adjoining  land  through  natural  channels.  On  the 
other  hand,  the  owner  of  the  adjoining  land  may  prevent 
such  overflow  of  his  land  by  the  erection  of  barriers,  or  by 
the  use  of  any  other  suitable  means.2  But  in  the  drainage 
of  one's  land  it  is  not  permissible  to  direct  the  flow  of  the 

1  Rawstron  v.  Taylor,  11  Exch.  369;  Dudden  v.  Guardians;  etc.,  1  H.  &  N. 
627;  Morton  v.  Scholefield,  9  Mees.  &  "W.  665;  Chasemore  v.  Richards,  5  H. 
&N.  982;  Dickinson  v.  Canal  Co.,  7  Exch  800;  Hodgkinson  v.  Ennor,  4  B.  & 
S.  229;  Smith  v.  Kendrick,  7  C.  B.  566;  Acton  v.  Blundell,  12  Mees.  &  W. 
324;  Chase  v.  Silverstone,  62  Me.  475;  16  Am.  Rep.  419;  Greenleaf  v.  Fran- 
cis, 18  Pick.  117 ;  Luther  v.  Winnisimett  Co.,  9  Cush.  171 ;  Parker  v.  Boston 
&  M.  R.  R.,  3  Cush.  107;  Wilson  v.  City  of  Bedford,  108  Mass.  261 ;  11  Am. 
Rep.  352;  Roath  v.  Driscoll,  20  Conn.  533;  Brown  v.  Illins,  25  Conn.  583; 
Village  of  Delphi  v.  Youmans,  45  N.  Y.  362;  6  Am.  Rep.  100;  Ellis  v.  Dun- 
can, 21  Barb.  230;  Smith  v.  Adams,  6  Paige  Ch.  485;  Radcliffe  v.  Mayor, 
etc.,  4  N.  Y.  200;  Wheatley  v.  Baugh,  25  Pa.  St.  528;  Clark  v.  Lawrence,  & 
Jones  Eq.  783;  Frazier  v.  Brown,  12  Ohio,  811;  Hanson  «.  MpCmp^_49  gaL. 
303 ;  10  Am.  Rep.  299 ;  Hougan  v.  Milwaukee,  etc.,  R.  R.,  35  Iowa,  558 ;  14 
Am.  Rep.,  502. 

2  Greeley  v.  Maine  Cent.  R.  R.,  53  Me.  200;  Gannon  v.  Hagadon,  10  Allen, 
106;  Parks  v.  Newburyport,  16  Gray,  29;  Swett  e.  Cutts,  50  N.  H.  439;  9 
Am.  Rep.  276  ;  Goodale  v.  Tuttle,  29  N.  Y.  459  ;  Bowlsby  v.  Speer,  31  N.  J. 
L.  351;  Hoyt  v.  Hudson,  27  Wis.  656.  Contra,  if  it  does  injury;  Gerrish  v. 
Clough,  48  N.  H.  9;  2  Am.  Rep.  165;  Ojjburn_w:LCo3norj_46  Cal.  346;  13 
Am.  Rep.  213. 


479 


;§    617  EASEMENTS.  [PART   II. 

water  upon  the  adjoining  land  by  the  construction  of  a  dram 
or  ditch.  Still,  it  is  permissible  by  the  use  of  such  means 
to  empty  the  water  into  a  natural  stream,  and  if  the  volume 
■of  the  stream  is  thereby  increased  to  such  an  extent  as  to 
■cause  damage  to  the  riparian  owners  below,  they  are  with- 
out remedy.1 

§  616.  Artificial  watercourses.  —  The  rule  is  also  dif- 
ferent where  the  water  course  is  artificial.  No  one  has  the 
right  to  establish  an  artificial  water  course  upon  the  land  of 
another;  but  if  the  latter  permits  its  construction  he  ac- 
quires no  easement  in  the  water,  and  cannot  compel  its 
perpetual  maintenance,  whatever  injury  he  might  suffer 
from  its  discontinuance.  An  uninterrupted  enjoyment  of 
the  artificial  water  course  for  twenty  years  will  not  give  him 
such  a  right.  The  construction  of  the  water  course  being 
only  for  certain  purposes,  the  adjoining  owner  could  not  by 
mere  enjoyment  acquire  a  prescriptive  right  to  its  continu- 
ance. He  who  creates  the  artificial  stream  may  stop  or 
divert  it  when  he  pleases,  but  at  the  same  time  he  cannot 
maliciously  foul  the  water  to  the  detriment  of  the  riparian 
owners  below.2 

§  617.  Easements  in  water  courses.  — The  various  rights 
so  far  mentioned  are  natural  rights  incident  to  riparian 
ownership,  implied  or  established  by  law.  These  rights  are 
^enjoyed  independent  of  any  contract  or  grant.  But  it  is 
manifest  that  an  express  grant  may  operate  in  enlarging, 
diminishing  or  altogether  extinguishing,  the  natural  rights. 

1  Dickinson  v.  Worcester,  7  Allen,  19 ;  Waffle  v.  N.  Y.  Central  R.  R.,  53  N. 
Y.  11;  13  Am.  Rep.  467;  Miller  v.  Laubach,  47  Pa.  St.  154;  Butler  v.  Peck, 
16  Ohio  St.  334 ;  Pettigrew  v.  Evansville,  25  Wis.  223 ;  3  Am.  Rep.  50 ;  Smith 
v.  Kendrick,  7  C.  B.  515. 

2  Arkwright  v.  Gell,  5  Mees.  &  W.  203 ;  Mayor  v.  Chadwick,  11  A.  &  E. 
571;  Elliott  v.  Northeastern  Railway  Co.,  10  H.  L.  Cas.  333;  Beaston  v. 
Weate,  5  E.  &  B.  986 ;  Wright  v.  Williams,  1  Mees.  &  W.  77 ;  Saunders  t>. 
Newman,  1  B.  &  Aid.  258;  Napier  v.  Bulwinkle,  5  Rich.  317. 

480 


CH.  XVI.]  EASEMENTS.  §    (518 

They  may  be  varied,  and  new  rights  may  be  acquired  by 
prescription  or  grant.  An  express  grant  or  prescription 
will  alter  the  natural  or  common-law  rights  of  the  riparian 
owners  in  the  same  manner  as  the  creation  of  express  and 
special  easements  affects  the  rights  of  property  in  other 
cases.1  Where  special  rights  are  acquired  in  a  stream  of 
water  by  grant,  the  owner  of  the  dominant  estate  or  grantee 
has  no  right  to  make  such  use  of  the  water  as  will  inflict 
greater  injury  upon  the  other  riparian  owners  than  is  ex- 
pressly permitted  by  the  terms  of  the  grant.  And  the  right 
acquired  by  prescription  cannot  in  the  same  way  be  enlarged 
or  extended.2  Where  one  has  the  right  of  a  watercourse 
over  another's  land,  he  is  obliged  to  keep  it  in  repair,  in  the 
absence  of  covenants  imposing  that  obligation  upon  the 
owner  of  the  land,  and  for  that  purpose  he  has  the  right  to 
enter  upon  the  land  to  make  the  repairs,  taking  care  that 
no  unnecessary  damage  be  done  to  the  servient  estate.3 

§  618.   Right   of   lateral  and  subjacent  support.  —  As 

an  incident  to  the  right  of  property  in  lands,  the  proprietor 
cannot  make  excavations  upon  his  land,  which  will  deprive 
the  adjoining  land  of  that  lateral  support  which  is  necessary 
to  keep  it  from  falling  in.4     In  the  same  manner,  where 

1  Manning  v.  Wasdale,  5  A.  &  E.  758;  Stockport  Waterworks  v.  Potter,  3 
H.  &  C.  300;  s.  c,  31  L.  J.  Exch.  9;  Dudley  Canal  v.  Grazebrook,  1  B.  &  Aid. 
">9;  Carlyon  v.  Lovering,  1  H.  &  N.  784;  Goldsmith  v.  Tunbridge  Wells 
(Commissioners,  L.  K.  1  Ch.  349;  Crossly  v.  Lightow.ler,  L.  R.  2  Ch.  479; 
Nuttal  v.  Bracewell,  L.  R.  2  Ex.  1;  Cooke  v.  Hull,  3  Pick.  269;  Stowell  v. 
Lincoln,  11  Gray,  434;  Watkins  v.  Peck,  13  N.  H.  360. 

2  Sampson  v.  Hoddinott,  1  C.  B.  (n.  s.)  590;  Bickett  v.  Morris,  L.  R.  1  H 
L.  Cas.  47;  Northam  v.  Hurley,  1  E.  &  B.  665;  Embrey  v.  Owen,  6  Exch. 
353;  Jennison  v.  Walker,  11  Gray,  423. 

3  Peter  v.  Daniel,  C.  B.  568 ;  -Prescott  v.  White,  21  Pick.  341. 

*  Partridge  v.  Scott,  3  Mees.  &  W.  220;  Humphries  v.  Brogden,  12  Q.  B. 
743;  Bibby  v.  Carter,  4  H.  &  N.  153;  Wyatt  v.  Harrison,  3  B.  &  Ad.  871 ; 
Backhouse  v.  Bonorni,  9  II.  L.  Cas.  50:! ;  Elliott  v.  Northeastern  Railway,  10  H. 
L.  ('as.  833;  Thurston  v.  Hancock,  12  Mass.  220;  Cullender  v.  Marsh,  1  Pick. 
418;  Foley  v.  Wveth,  2  Allen  181  ;     Panton  v.  Holland,  17  Johns.  92;  Lasala 

31  481 


§    618  EASEMENTS.  [PART   II. 

there  is  a  separate  ownership  in  the  surface,  and  the  mines 
beneath,  the  owner  of  the  mines  cannot  by  working  them 
so  weaken  the  subjacent  support  to  the  surface  as  to  cause 
it  to  cave  in.1  These  are  natural  rights  of  easements,  which 
are  independent  of  any  covenant  or  grant.  They  extend, 
however,  only  to  the  support  of  the  adjoining  land  or  sur- 
face in  its  natural  condition.  If  the  burden  of  support  is 
increased  by  the  erection  of  buildings  upon  the  land,  and  it 
is  because  of  such  increase  that  the  excavation  has  caused 
the  injury  to  the  adjacent  owner,  he  is  without  remedy. 
He  had  no  natural  easement  upon  the  land  of  his  neighbor 
for  the  support  of  his  buildings.  Such  is  also  the  rule 
where  in  the  case  of  mines  the  erection  of  the  buildings 
causes  the  surface  to  give  way.2  But  if  the  excavation  is 
made  in  a  negligent  or  unskilful  manner,  and  the  damage 
results  from  negligence  or  unskilfulness,  and  not  from  the 
increase  of  the  burden  by  the  erection  of  the  house,  an  ac- 
tion will  lie  for  the  injury  thus  sustained.3  The  English 
courts,  however,  deny  the  right  to  an  action  in  such  a  case, 
if  injury  would  not  have  resulted  from  the  negligence,  had 
there  been   no  building  or  other  superstructure  upon  the 

v.  Holbrook,  4  Paige  Ch.  169;  Hay  v.  The  Cohoes  Co.,  2  N.  Y.  162;  Austin 
v.  Hudson  River  R.  R.  Co.,  25  N.  Y.  334 ;  Richardson  v.  Vermont  Central  R. 
R.,  25  Vt.  465;  Beard  v.  Murphy,  37  Vt.  101 ;  McGuire  u.  Grant,  25  N.  J.  L. 
356 ;  Charless  v.  Rankin,  22  Mo.  666. 

1  Humphries  v.  Brogden,  12  Q.  B.  739;  Smart  v.  Morton,  5  E.  &  B.  30; 
Rowbotham  v.  Wilson,  8  E.  &  B.  123;  Harris  v.  Ryding,  5  Mees.  &  W.  60; 
Micklin  v.  Williams,  12  Exch.  259;  Jones  v.  Wagner,  66  Pa.  St.  429;  5  Am. 
Rep.  385. 

2  Rogers  v.  Taylor,  2  H.  &  N.  828 ;  Palmer  v.  Fleshees,  1  Sid.  167  ;  Gayford 
v.  Nichols,  9  Exch.  702;  Thurston  v.  Hancock,  12  Mass.  220;  Lasala  v.  Hol- 
brook, 4  Paige  Ch.  169;  McGuire  v.  Grant,  25  N.  J.  L.  356;  Napier  v.  Bul- 
winkle,  5  Rich.  311 ;  Charless  v.  Rankin,  22  Mo.  566. 

3  Foley  v.  Wyeth,  2  Allen  131 ;  Richardson  v.  Vermont  Cent.  R.  R.,  25  Vt. 
465;  Panton  v.  Holland,  17  Johns.  92;  Austin  v.  Hudson  River  R.  R.,  25 
N.  Y.  338;  McGuire  v.  Grant,  25  N.  J.  L.  356;  Shrieve  v.  Stokes,  8  B.  Mod. 
453 ;  Charless  v.  Rankin,  22  Mo.  573. 

482 


CH.  XVI.]  EASEMENTS.  §    619 

land.1  But  these  natural  rights  may  be  enlarged  or  dimin- 
ished by  express  grant,  or  entirely  new  rights  may  be  ac- 
quired by  prescription.  Thus  a  house  may  have  annexed  to 
it  by  grant  or  prescription  an  easement  for  lateral  or  sub- 
jacent support  on  the  adjacent  or  underlying  property  of 
another,  which  cannot  be  claimed  as  a  natural  incident  of 
the  right  of  property.  On  the  other  hand,  the  right  to  such 
a  support  may  be  surrendered  altogether.2 

§  (519.  Implied  grant  of  lateral  support.  —  Another 
exception  to  the  general  rule  arises  where  the  owner  of  two 
adjoining  lots  conveys  one  with  a  building  thereon ;  he  can- 
not by  excavations  on  the  other  lot  deprive  the  building  of 
the  requisite  support.  The  grant  of  an  easement  for  lateral 
support  is  implied  from  his  conveyance  of  the  lot  and  build- 
ing. He  will  not  be  permitted  to  do  anything  upon  the 
remaining  lot  which  will  detract  from  its  full  enjoyment.3 
The  same  rule  applies  when  adjacent  houses  rely  for  lateral 
support  upon  the  walls  of  each  other,  as  where  houses  are 
built  in  a  block,  and  the  walls  between  them  mutually  sup- 
port each  other.  If  one  man  erects  the  block,  and  aftei- 
wards  sells  one  or  more  of  the  houses,  an  easement  for 
support  arises  in  favor  of  the  owners  of  the  several  houses. 
This  easement  may  also  be  acquired  by  express  grant  in  all 
cases  where  it  will  not  be  implied.4 

>  Smith  v.  Thackerah,  L.  E.  1  C.  B.  564;  Brown  v.  Kobins,  4  H.  &  N.  186 ; 
Strogan  v.  Knowles,  6  H.  &  N.  454 ;  Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503. 

2  Rogers  v.  Taylor,  2  H.  &  M.  828;  Wyatt  v.  Harrison,  3  B.  &  Ad.  817; 
Hyde  v.  Thornburgh,  2  Car.  &  K.  250;  Dodd  v.  Holme,  1  A.  &  E.  493  ;  Par- 
tridge v.  Scott,  3  Mees.  &  W.  220 ;  Lasala  v.  Holbrook,  4  Paige  Ch.  169 ; 
Richart  v.  Scott,  7  Watts,  460.  It  has  been  held  in  Georgia  that  the  right  to 
lateral  support  for  a  building  cannot  be  acquired  by  prescription.  Mitchell  v. 
Mayor,  49  Ga.  19 ;  15  Am.  Rep.  469. 

3  Brown  v.  Windsor,  1  C.  &  J.  20;  Richards  v.  Rose,  Ex.  Ch.  218;  Hum- 
phries v.  Brogden,  12  Q.  B.  743;  Palmer;;.  Fleshees,  1  Sid.  167  ;  United  States  v. 
Appleton,  1  Sumu.  492;  Lasala  v.  Holbrook,  4  Paige  Ch.  169;  Eno  v.  Del 
Vecchio,  4  Duer,  53;   McGuire  ,-.  Grant,  25  N.  J.  L.  356. 

*  Solomon  v.  \  intner's  Co., 4  II.  &2ST.  598;  Walters  v.  Pfeil,  Mood.  &  M. 
362;  Peyton  v.  Mayor  of  London,  9  li.  &  C.  725;  Massey  v.  Goyder,  4  6  &  P. 

483 


§    620  EASEMENTS.  [PART    II. 

§  620.  Party  walls.  —  Rights  similar  to  lateral  support 
are  acquired  by  the  erection  of  the  so-called  party  walls. 
A  party  wall  is  one  which  is  erected  between  two  lots  for 
the  common  benefit  of  the  owners  thereof  in  supporting 
the  beams  of  their  adjoining  buildings.  They  are  not  ten- 
ants in  common  of  the  entire  wall.  Each  has  the  title  in 
severalty  to  one-half,  with  an  easement  for  support  in  the 
other  half.  Each  of  the  owners  can  do  whatever  he  pleases 
with  his  own  half,  provided  he  does  not  weaken  the  support 
of  the  other  half.  And  if  he  tears  down  his  half  he  does  it 
at  the  risk  of  rendering  himself  liable  for  any  injuries  sus- 
tained by  the  remaining  portion  of  the  wall.1  But  it  is  not 
every  wall  which  is  common  between  two  houses  that  has 
the  characteristics  of  a  party  wall.  But  every  such  wall  by 
constant  use  as  a  common  wall  tor  twenty  years  will  become 
a  party  wall  by  prescription.-  Party  walls  are  generally 
erected  by  express  agreement  between  the  parties,  each 
paying  his  share  of  the  expenses.  The  mere  erection  by 
one  of  a  common  wall  between  them  will  not  subject  the 
other  to  liability  for  one-half  the  expenses  of  erection,  even 
though  he  derives  as  much  benefit  therefrom  as  the  one  who 
caused  its  erection.3     Party  walls  are  generally,  though  not 

161 ,  Richards  v.  Rose,  24Eng.  L.  &  Eq.  406,  s.  c,  9  Ex.  Ch.  218 ;  Eno  v.  Del 
Vecchio,  4  Duer,  53;  Webster  v.  Stevens,  5  Duer,  -553;  Napier  v.  Bulwinkle,  5 
Rich.  311. 

1  Matts  v.  Hawkins,  5  Taunt.  20;  Sherred  v.  Cisco,  4  Sandf.  480;  Dubois  v. 
Beaver,  25  N.  Y.  127;  Brooks  v.  Curtis,  50  N.  Y.  639;  10  Am.  Rep.  545; 
Orman  v.  Day,  5  Fla.  385. 

2  Eno  v.  Del  Vecchio,  4  Duer,  53;  Dowiing  v.  Ilennings,  20  Md.  179.  But 
see  Mitchell  v.  Mayor,  49  Ga.  19;  15  Am.  Kep.  H69;  Napier  v.  Bulwinkle,  5 
Rich.  311. 

8  Richardson  v.  Tobey,  121  Mass.  457  ;  23  Am.  Rep.  283  ;  Sherred  v.  Cisco, 
4  Sandf.  480;  Dole  v.  Hughes,  54  N.  Y.  444;  13  Am.  Rep.  611;  Orman  r. 
Day,  5  Fla.  385.  And  one  part  owner  of  a  part}'  wall  may  be  sued  on  his  con- 
tract or  covenant  for  his  share  of  the  expenses.  Day  v.  Caton  115  Mass.  513 ; 
20  Am.  Rep.  347;  Rindge  v.  Baker,  57  IS.  Y.  207;  15  Am.  Kep,  475.  But  a 
covenant  to  build  a  party  wall  is  executory  and  personal  in  its  nature,  and  does 
not  run  with  the  land  so  as  to  bind  the  assigns  of  the  covenantor.  Cole  v. 
Hughes,  54  N.  Y.  444;  13  Am.  Rep.  611. 
484 


CH.  XVI.]  EASEMENTS.  §    621 

necessarily,  erected  one-half  on  each  of  the  contiguous  es- 
tates.1 

§  621.  Double  ownership  in  buildings  —  Subjacent 
support.  —  Where  there  is  a  separate  ownership  in  the  upper 
or  lower  half  of  a  house,  similar  easements  of  support  are 
enjoyed  by  the  respective  owners.  The  owner  of  the  upper 
half  is  entitled  to  the  subjacent  support  from  the  lower 
half,  and  the  owner  of  the  lower  half  has  an  easement  in 
the  upper  half,  the  roof,  etc.,  for  protection  from  rain  and 
other  elements.  The  law  is  not  very  clear  as  to  the  obliga- 
tions of  the  owners  to  each  other.  Without  doubt  one 
cannot  do  any  affirmative  act  to  his  half  which  will  result  in 
damage  to  the  other.  But  whether  he  is  under  a  legal  ob- 
ligation  to  keep  his  half  in  repair  for  the  benefit  of  the 
other  is  not  well  settled,2  although  that  would  seem  to  be  a 
just  and  equitable  doctrine.  If  there  is  no  such  obligation 
to  repair,  the  owner  of  the  other  half  has  the  right  to  enter 
and  make  the  repairs  himself.  There  seems  also  to  be  a 
tendency  to  adopt  the  French  rule,  making  all  expenses  for 
repair  a  common  charge  upon  all  the  owners.3  But  it  will 
require  further  adjudication  in  order  to  settle  the  rights  and 
obligations  of  these  parties. 

1  See  Cubitt  v.  Porter,  8  B.  &  C.  257 ;  Wiltshire  v.  Sidford,  8  B.  &  C.  259 ; 
Bradley  v.  Christ's  Hospital,  4  Mann.  &  G.  761  ;  Brondage  v.  Warner,  2  Hill, 
145;  Partridge  v.  Gilbert,  15  N.  Y.  601 ;  Evans  v.  Jayne,  23  Pa.  St.  36 ;  Dowl- 
ing  v.  Hennings,  20  Md.  179. 

2  The  authorities  generally  deny  the  right  of  action.  Calvert  v.  Aldrich, 
99  Mass.  74 ;  Pierce  v.  Dyer,  109  Mass.  374 ;  12  Am.  Rep.  716  ;  Cheeseborough  v. 
Green,  10  Conn.  318.  But  if  the  owner  of  the  upper  half  repairs  the  roof, 
he  bears  the  whole  expenses,  and  cannot  compel  the  owner  of  the  other  half 
to  pay  any  proportion  of  it.  Ottumwa  Lodge  v.  Lewis,  34  Iowa,  67 ;  11  Am. 
Rep.  135.  See  also  Graves  v.  Berdan,  26  N.  Y.  501 ;  Cheeseborough  v.  Green, 
10  Conn.  318 ;  McCormick  v.  Bishop,  28  Iowa,  239. 

3  Campbell  v.  Mesier,  4  Johns.  Ch.  334.  Contra,  Ottumwa  Lodge  v.  Lewis, 
34  Iowa,  67;  11  Am.  Rep.  135.  And  see  Graves  v.  Berdan,  26  N.  Y.  501 ; 
Cheeseborough  v.  Green,  10  Conn.  318 ;  McCormick  v.  Bishop,  28  Iowa,  239. 

485 


§     622  EASEMENTS.  [PAKT    II. 

§  622.  Legalized  nuisances.  —  Whereone  acquires  from 
the  owners  of  the  land  in  the  neighborhood  by  grant  or 
prescription  the  right  to  do  things  which  without  such  license 
would  be  a  nuisance,  and  for  which  an  action  would  lie, 
he  is  said  to  have  acquired  an  easement  in  the  lands  to  com- 
mit the  nuisance,  free  from  liability  for  the  consequences. 
Such  is  very  often  the  case  with  noisome  or  offensive  trade-. 
The  trade  must,  however,  be  lawful,  and  likely  to  be  pro- 
ductive of  benefit  to  the  public,  in  order  that  the  easement 
may  bind  the  owners  of  the  neighboring  land.  And  a  nui- 
sance, legalized  in  this  manner,  must  be  kept  strictly  within 
the  conditions  upon  which  the  right  was  acquired.  The 
licensee  will  not  be  permitted  to  increase  the  nuisance,  or 
to  establish  a  new  one  in  its  place,  and  the  right  must  be 
exercised  with  the  least  possible  discomfort  or  annoyance 
to  the  owners  of  the  adjoining  lands.1 

1  Aldred's Case,  9 Rep.  59  a ;  Cole  v.  Barlow,  4C.&  B.,  (sr.  s.)  434 ;  Baxen- 
dale  v.  McMurray,  L.  R.  2  Ch.  790;  Elliotson  v.  Feetham,  2  Sing.  N.  C.  134; 
Bower  v.  Hill,  lb.  339;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L. 
Cas.  642;  Dana  v.  Valentine,  5  Mete.  8;  Atwater  v.  Bodfish,  11  Gray  152; 
Holeman  v.  Boiling  Spring  Co.,  14  N.  J.  Eq.  346. 
486 


SECTION  III. 


FRANCHISES. 


Section  633.  Definition. 

634.  Kinds  of  franchises. 

635.  Mutual  obligations. 

636.  Conflicting  franchises  —  Constitutional  prohibition. 

§  633.  Definition.  —  A  franchise  is  a  privilege  granted 
by  the  government  to  individuals  which  is  not  enjoyed  by, 
and  do  not  belong  in  common  to,  the  people  of  a  country. 
In  England  it  is  conferred  by  letters  patent  from  the  crown, 
and  in  this  country  by  grants  from  the  legislative  depart- 
ment of  the  government.  It  is  a  privilege  which  is  granted 
because  it  is  calculated  to  promote  the  public  benefit,  while 
at  the  same  time  it  affords  a  source  of  revenue  to  those  who 
engage  in  its  exercise.1  A  franchise  is  generally,  but  not 
necessarily,  granted  to  a  corporation.  Individuals  may 
possess  it,  but  it  is  usually  of  such  a  nature  that  it  is  easier 
and  more  convenient  for  corporations  to  exercise  it.  It  is 
an  estate  of  inheritance,  unless  its  enjoyment  is  limited  to 
a  specific  period,  and  is  inheritable.2  It  can  be  aliened,  and 
may  be  sold  to  satisfy  the  debts  of  the  corporation  or  the 
individuals  who  own  it.3  The  franchise  is  to  be  distinguished 
from  the  charter  of  the  corporation  which  owns  it,  although 
the  franchise  is  often  granted  in  the  same  act  which  contains 

1  Bk.  of  Augusta  v.  Earle,  13  Pet.  519;  2  Bla.  Com.  37;  Ang.  &  Ames, 
on  Corp.,  sect.,  737 ;  People  v.  Utica  Ins.  Co.,  15  Johns.  358.  In  England 
franchises  are  now  granted  by  the  Legislature,  instead  of  by  the  crown  as 
formerly.    1  Cool.  Bla.  Com.  274,  n. 

2  3  Kent's  Com.  459 ;  2  Washb.  on  Real  Prop.  291 ;  Chadwick  v.  Haver- 
hill Bridge,  2  Dane  Abr.  686  ;  Stark  v.  McGowen,  1  Nott  &  M.  393 ;  Clark  v. 
White,  5  Bush,  353. 

1  2  Washb.  on  Real  Prop.  297. 

487 


§    635  FRANCHISES.  [PART   II. 

the  charter.  Thus,  in  the  case  of  a  railroad  company,  the 
franchise  of  the  road  may  be  sold  to  satisfy  debts,  but  the 
charter  does  not  pass  with  it. 

§  034.  Kinds  of  franchises.  —  There  are  as  many  kind* 
of  franchises  as  there  may  be  privileges  granted  by  the  gov- 
ernment. The  most  common  are  ferries,  bridges,  turnpike 
roads,  and  railroads.  A  ferry  is  the  right  to  conduct  pas- 
sengers and  freight  by  boat  across  a  navigable  stream  be- 
tween two  points  on  the  opposite  banks.  The  right  to  a 
ferry  does  not  depend  upon  the  proprietorship  of  the  water, 
or  of  the  banks.  Neither  gives  the  right  to  set  up  a  ferry, 
nor  does  the  grant  of  a  ferry  interfere  with  the  general 
navigation  of  the  stream.1  In  the  same  manner  is  the  right 
to  construct  a  bridge  across  a  stream,  or  to  build  a  railroad 
or  turnpike,  a  privilege,  and  not  a  common  right  which 
may  be  enjoyed  by  any  one.2 

§  635.  Mutual  obligations.  —  In  the  grant  of  a  franchise, 
mutual  obligations  are  assumed  by  the  government  and  the 
individuals  or  corporation  who  receive  it.  The  govern- 
ment confers  upon  the  latter  the  right  to  exercise 
the  right  of  eminent  domain  over  private  property, 
so  far  as  it  is  necessary  for  the  enjoyment  of  the 
franchise,  and  the  further  right  to  provide  for  its  own 
compensation,  by  charging  a  toll  to  all  persons  who  make 
use  of  the  benefits  thus  provided.  On  the  other  hand, 
the  corporation  undertakes  to  provide  for  the  public  safe 
and  convenient  accommodations,  and  for  any  failure  to  carry 

1  Peter  v  Kendall,  6  B.  &  C.  703 ;  Fay,  Petitioner,  15  Pick.  243 ;  Mills  v. 
County  Commissioners,  4  111.  533;  McRoberts  v.  Washburn,  10  Minn.  27  ^ 
Fall  v.  County  Sutter,  21  Cal.  252. 

2  Beckman  v.  Saratoga,  etc.,  R.  R.,  3  Paige  Ch.  45;  Bloodgood  v.  Mohawk 
Railroad,  18  Wend.  9;  Milhan  v.  Sharp,  27  N.  Y.  619;  Davis  v.  Mayor,  etc., 
14N.Y.  506;  Bush  v.  Peru  Bridge  Co.,  3  Ind.  21 ;  McRoberts  v.  Washburn, 
10  Minn.  27. 

488 


CH.  XVI.]  FRANCHISES.  §    636* 

out  its  part  of  the  contract  it  is  liable  to  any  person  who 
may  be  injured  thereby,  and  it  may  lose  its  franchise  by 
forfeiture  to  the  State.  The  franchise  is  forfeited  only  at 
the  suit  of  the  government,  by  a  judgment  in  a  proceeding 
of  scire  facias  or  quo  warranto} 

§  636.  Conflicting  franchises  —  Constitutional  prohibi- 
tion.—  If  the  government,  in  granting  a  franchise,  obli- 
gates itself  not  to  grant  a  similar  franchise  to  be  exercised 
in  the  same  neighborhood,  or  between  the  same  points,  any 
subsequent  franchise  would  be  void,  under  the  provision  of 
the  United  States  Constitution,  which  prohibits  a  State  from 
passing  any  law  impairing  the  obligation  of  a  contract.2 
But  if  there  is  no  express  restriction  of  that  kind,  none  will 
be  implied.  And  the  grant  of  a  second  franchise  would  be 
good,  even  though  its  exercise  would  render  the  first  alto- 
gether valueless  .3  A  franchise  is  not  necessarily  a  monopoly. 
And  even  when  there  is  such  a  restriction,  the  State  is  not 
prohibited  from  destroying  the  first  franchise  by  the  grant 
of  a  second,  under  the  doctrine  of  eminent  domain,  when- 
ever the  public  wants  require  such  a  forfeiture.  In  such  a 
case,  however,  the  owners  of  the  first  franchise  would  be 
entitled  to,  and  would  receive,  a  proper  compensation  for 


1  Peter  v.  Kendall,  6  B.  &  C.  703 ;  Willoughby  v.  Horridge,  12  C.  B.  742 ; 
Chadwick  v.  Haverhill  Bridge  Co.,  2  Dane  Abr.  683;  Ferrell  v.  Woodward,  20 
Wis.  461 ;  McRoberts  v.  Washburn,  10  Min.  27 ;  3  Kent's  Com.  458 ;  2  Washb. 
on  Eeal  Prop.  293. 

2  Dartmouth  College  v.  Woodward,  4  Wheat.  518  ;  Boston  &  Lowell  E.  R. 
v.  Salem  &  L.  R.  R.,  2  Gray,  1 ;  Newburgh  Turnpike  Co.  v.  Miller,  5  Johns. 
Ch.  101 ;  People  v.  Sturtevant,  9  N.  Y.  273;  Milhan  v.  Sharp,  27  N.  Y.,  620;. 
McRoberts  v.  Washburn,  10  Minn.  29. 

3  Charles  River  Bridge  Co.  v.  Warren  River  Bridge  Co.,  7  Pick.  344 ;  s.  c.r 
11  Pet.  429;  Richmond  R.  R.  Co.  v.  Louisa  R.  R.  Co.,  13  How.  71;  Mills  v.  St. 
Clair  Co.,  8  How.  581 ;  Piscataqua  Bridge  Co.  v.  New  Hampshire  Bridge  Co., 
7  N.  H.  59 ;  Mohawk  Bridge  Co.  v.  Utica  R.  R.  Co.,  6  Paige  Ch.  554 ;  Fort 
Plain  Bridge  Co.  v.  Smith,  30  N.  Y.  61 ;  Bush  v.  Peru  Bridge  Co.,  3  Ind.  21  j 
McRoberts  v.  Washburn,  10  Minn.  28;  Fall  v.  County  Sutter,  21  Cal.  252. 

489 


§    636  FRANCHISES.  [PART   II. 

such  loss.  A  franchise  is  just  as  much  subject  to  the  exer- 
cise of  eminent  domain,  under  similar  restrictions  as  to 
compensation,  as  any  other  kind  of  private  property.1  If, 
however,  private  persons  attempt,  without  a  franchise,  to 
exercise  the  same  rights  as  are  granted  by  the  franchise,  to 
the  prejudice  of  the  owners  of  the  franchise,  such  an  inter- 
ference would  be  considered  a  nuisance,  which  will  be  abated 
and  damages  awarded  upon  proper  application  to  the  courts.2 

1  "West  River  Bridge  Co.  v.  Dix,  6  How.  507 ;  Richmond  R.  R  Co.  v.  Louisa 
R.  R.  Co.,  13  How.  71 ;  Boston  Water  Power  Co.  v.  Boston  &  W.  R.  R.  Co„ 
23  Pick.  360 ;  Boston  &  Lowell  R.  R.  v.  Salem  &  L.  R.  R.,  2  Gray,  1 ;  Central 
Bridge  Co.  v.  Lowell,  4  Gray,  474 ;  White  River  Turnpike  Co.  v.  Vermont 
Cent.  R.  R.,  21  Vt.  590 ;  New  York,  etc.,  R.  R.  v.  Boston,  etc.,  R.  R.,  36  Conn. 
196 ;  Matter  of  Kerr,  42  Barb.  119 ;  McRoberts  v.  Washburn,  10  Minn.  27. 

2  2  Bla.  Com.  219 ;  2  Washb.  on  Real  Prop.  294;  Ogden  v.  Gibbons,  4 
Johns.  Ch.  150;  Newburgh  Turnpike  Co.  v.  Miller,  5  Johns.  Ch.  101;  Mc- 
Roberts v.  Washburne,  10  Minn.  27;  Fall  v.  County  Sutter,  21  CaL  252. 

490 


SECTION  IV. 

RENTS. 

Section  641.  Kents  defined. 

642.  Rent-service. 

643.  Rent-charge  and  rent-seek  —  Fee  farm  rents. 

644.  How  created. 

545.  How  extinguished  or  apportioned. 
646.  Remedies  for  the  recovery  of  the  rent. 

§  641.  Rents  defined.  —  A  rent,  according  to  Mr.  Wash- 
burn, "is  a  right  to  the  periodical  receipt  of  money  or 
money's  worth  in  respect  of  lands,  which  are  held  in  pos- 
session, reversion  or  remainder,  by  him  from  whom  the 
payment  is  due."  1  It  is,  in  other  words,  a  right  to  the 
payment  of  something  out  of  the  profits  of  lands,  to  be 
rendered  by  the  owner  thereof  and  his  privies,.  At  common 
law  there  were  three  kinds  of  rents,  viz.  :  Rent  service, 
rent  seek  and  rent  charge. 

§  642.  Rent  service.  —  A  rent  service  is  that  which  the 
owner  of  a  feud  reserves  to  himself  in  conveying  a  part  or 
the  whole  of  his  estate  therein,  to  be  paid  by  the  grantee. 
In  every  such  conveyance  there  was  a  tenure  existing  be- 
tween grantor  and  grantee  even  of  the  fee,  and  out  of  this 
tenure,  and  as  an  incident  thereof,  whenever  there  was  a 
rent  reserved  the  owner  of  the  rent  had  the  right  to  go  upon 
the  land  and  distrain  the  grantee's  goods  and  chattels,  and 
satisfy  himself  for  the  accrued  and  unpaid  rent  by  a  sale 
thereof.  This  right  of  distress  was  enjoyed  by  the  holder 
of  a  rent  service,  without  its  being  expressly  reserved.  The 
Statute  Quia  Emptores  abolished  all  tenure  between  grantors 

1  2  Washb.  on  Real  Prop.  272 ;  Co.  Lit.  142  a. 

491 


§    644  RENTS.  [part  II. 

and  grantees  of  the  fee,  so  that  at  present  a  rent  service 
cannot  be  reserved  out  of  a  fee.1  But  this  tenure  does  exist 
between  reversioner  or  remainder-man,  and  the  tenant  of  a 
term  of  years,  and  therefore  a  rent  service  may  be  reserved 
in  a  lease.2 

§  643.  Rent  charge  and  rent  seek  —  Fee  farm  rents.  — 

Rent  charge  is  that,  the  payment  of  which  is  made  a  charge 
upon  the  land,  but  to  which  no  right  of  distress  was  at- 
tached, unless  expressly  granted  or  reserved.  If  the  owner 
of  the  rent  was  given  this  right,  it  was  called  a  rent  charge, 
if  he  did  not  possess  it,  the  rent  was  a  mere  dry  rent,  or 
rent  seek,  the  payment  of  which  cannot  be  enforced  by  any 
seizure  of  the  property  out  of  which  it  was  to  issue.3  The 
characteristics  of  these  two  kinds  of  rents,  at  present,  pre- 
sent no  dissimilarity  except  in  the  matter  of  remedies  for 
their  enforcement,  and  are  generally  known  under  the 
common  name  of  fee-farm  rents,  and  are  thus  distinguished 
from  rents  service*  They  will,  therefore,  be  treated  to- 
gether under  .that  common  appellation. 

§  644.  How  created.  —  Fee-farm  rents  are  created  by 
any  form  of  conveyance  which  constitutes  a  valid  transfer 
of  other  incorporeal  hereditaments.  And  they  may  be 
either  reserved  by  the  owner  of  the  land  in  the  deed  con- 
veying the  land,  or  granted  by  him  to  a  stranger,  while  he 
retains  the  land.5     It  may  be  granted  in  fee,  in  tail,  for  life 

1  2  Washb.  on  Real  Prop.  273 ;  3  Prest.  Abst.  54 ;  Van  Rensselaer  v.  Read, 
26  N.  Y.  563 ;  Wallace  v.  Harmstad,  44  Pa.  St.  495. 

2  2  Wasbb.  on  Real  Prop.  273 ;  Williams  on  Real  Prop.  247.  See  ante 
sect  192,  193. 

3  3  Prest.  Abst.  55;  2  Bla.  Com.  42;  Williams  on  Real  Prop.  329,  330;  2 
Washb.  on  Real  Prop.  273,  274;  Cornell  v.  Lamb,  2  Cow.  652 ;  Van  Rensselaer 
v.Hays,  19  N.  Y.  68;  Van  Rensselaer  v.  Chadwick,  22  N.  Y.  33;  Wallace  v. 
Harmstad,  44  Pa.  St.  495. 

*  3  Prest.  Abst.  54 ;  2  Wasbb.  on  Real  Prop.  273 ;  Langford  v.  Selmes,  S 
Kay  &  J.  229 ;  Williams  on  Real  Prop.  3:;3. 

5  3  Prest.  Abst.  53;  3  Cruise  Dig.  273;  Williams  on  Real  Prop.  334;  Van 
Rensselaer  v.  Hays,  19  N.  Y.  68;  Ingersoll  v.  Sergeant,  1  Whart.  337. 

492 


<CH.  XVI.]  RENTS.  §    645 

or  for  years,  and  there  may  be  a  grant  of  the  rent  to  one 
for  a  particular  estate,  with  a  remainder  to  another.1  But 
the  rent  will  be  only  good  so  far  as  the  estate  of  the  grantor 
extends.  A  tenant  for  life  cannot  grant  a  rent  for  a  longer 
period  than  his  own  life.2  Once  the  rent  is  created  it  is 
itself  the  subject  of  a  grant  or  devise,  and  may  be  carved 
up  into  any  number  of  estates,  as  long  as  the  fee  is  not 
parted  with.  It  descends  to  the  heirs,  and  is  capable  of 
being  conveyed  to  uses  and  in  trust.3  The  wife  also  may 
have  her  dower  or  the  husband  his  curtesy  out  of  a  rent 
held  in  fee  or  in  tail.4  Fee- farm  rents  are  not  very  common 
in  this  country.  Indeed  they  are  rarely  met  with  in  prac- 
tice. But  they  are  valid  limitations,  and  will  receive  the 
same  recognition  in  this  country  as  is  accorded  to  them  in 
England.  Whenever  used,  they  are  resorted  to  for  the 
purpose  of  securing  to  certain  heirs  their  share  in  the  inher- 
itance without  partitioning  the  land,  or  for  raising  joint- 
ures for  married  women.5 

§  645.   How    extinguished    or   apportioned. — If    one 

having  a  rent-charge  acquires  by  purchase  a  part  of  the 
premises,  out  of  which  the  rent  issues,  the  rent  is  wholly 
extinguished,  since  a  rent-charge  is  not  capable  of  appor- 
tionment.    This  rule  is  the  result  of  the  repugnance  enter- 


1  2  "Washb.  on  Real  Prop.  275  ;  Williams  on  Real  Prop.  334 ;  Van  Rensse- 
laer v.  Hays,  19  N.  Y.  68 ;  Van  Rensselaer  v.  Read,  26  N.  Y.  564. 

2  Williams  on  Real  Prop.  329 ;  2  Washb.  on  Real  Prop.  277 ;  2  Dane's  Abr. 
452. 

3  3  Prest.  Abst.  53  ;  2  Washb.  on  Real  Prop.  276 ;  3  Cruise  Dig.  285,  292 ; 
Van  Rensselaer  v.  Hays,  19  N.  Y.  68 ;  Van  Rensselaer  v.  Read,  26  N.  Y.  564. 

*  2  Washb.  on  Real  Prop.  276 ;  3  Cruise  Dig.  291. 

6  Scott  v.  Lunt,  7  Pet.  590 ;  Adams  v.  Bucklin,  7  Pick.  121 ;  Van  Rensselaer 
v.  Platner,  2  Johns.  Cas.  17;  Van  Rensselaer  v.  Hays,  19  N.  Y.  68;  Van  Rens- 
selaer v.  Read,  26  N.  Y.  564;  Williams'  Appeal,  47  Pa.  St.  290;  Farley  v. 
Craig,  11  N.  J.  L.  262 ;  Wartenby  v.  Moran,  3  Call,  424 ;  Marshall  v.  Conrad, 
5  Call,  364;  Alexander  v.  Warrance,  17  Mo.  228;  Walk.  Am.  Law,  265;  2 
Washb.  on  Real  Prop.  277,  278. 

493 


§    646  RENTS.  [part  II. 

tained  at  common  law  to  this  kind  of  rent.  The  rule  is  the 
same  if  he  releases  any  portion  of  the  land  from  the  charge.1 
But  the  rule  is  confined  to  cases  of  acquisition  by  purchase. 
If  a  portion  of  the  land  is  acquired  by  descent,  the  rent 
will  be  apportioned.2  The  owner  of  the  rent  may  avoid  the 
operation  of  this  rule  by  entering  into  a  new  agreement 
with  the  owner  of  the  land.  Thus,  if  the  land  is  held  by 
tenants  in  common,  in  case  of  partition  between  them,  the 
owner  of  the  rent  may  by  agreement  apportion  the  rent 
between  them,  or  he  may  release  a  portion  of  the  land  with 
the  consent  of  the  other  land-owners.3  These  agreements, 
however,  would  virtually  be  new  grants  of  rent,  and  cannot 
technically  be  said  to  secure  an  apportionment  of  the  old 
rent.  Although  there  can  be  no  apportionment  of  rent  in 
case  of  a  release,  or  transfer  to  the  grantee,  of  apart  of  the 
land  charged  Avith  the  rent,  it  can  be  divided  up  indefinitely 
by  the  owner  of  the  rent,  and  it  can  be  apportioned  among 
the  heirs  of.  the  grantee  at  his  death,  or  a  part  may  be 
severed  by  levy  of  execution  to  satisfy  the  debts  of  the 
grantee.4 

§  646.  Remedies  for  the  recovery  of  the  rent. — The 

ordinary  common-law  remedy  was  that  of  distress.  Upon 
failure  to  pay  the  rent,  the  person  entitled  to  payment  could 
distrain  the  tenant's  personal  property  found  upon  the  land, 
out  of  which  the  rent  issues.  This  right  of  distress  was  in- 
variably an  incident  to  a  rent  service,  but  had  to  be  expressly 
reserved  in  the  case   of  a  rent  charge.5     In  most  of  the 

1  2  Washb.  on  Real  Prop.  288;  Co.  Lit.  148;  Williams  on  Real  Prop.  337; 
Dennett  v.  Pass,  1  Bing.  (N.  C.)  388;  Parley  v.  Craig,  11  N.  J.  L.  262. 

2  2  Washb.  on  Real  Prop.  28S ;  Williams  on  Real  Prop.  337 ;  Cruger  v. 
McLaury,  41  N.  Y.  223. 

3  Van  Rensselaer  v.  Chadwick,  22  N.  Y.  33 ;  2  Washb.  on  Real  Prop.  289. 
*  Rivin  v.  Watson,  5Mees.  &  W.  255;  Farley  v.  Craig,  11  N.  J.  L.  262j 

Ryerson  v.  Quackenbush,  26  N.  J.  L.  236 ;  Cook  v.  Brightly,  46  Pa.  St.  440. 
5  2  Washb.  on  Real  Prop.  278;  2  Share.  Bla.  Com.  43  n. 

494 


CH.  XVI.]  KENTS.  §    646 

States  in  this  country  the  right  of  distress  has  been  adopted 
and  enforced,  as  modified  by  Stat.  4,  Geo.  II.  ch.  28,  which 
extended  it  to  rents  seek  and  rents  charge,  thereby  abolish- 
ing; all  distinction  between  them.1  But  it  has  never  existed 
in  New  England,  and  has  been  abolished  in  New  York  and 
several  of  the  other  States.2  In  addition  to  the  right  of 
distress,  there  is  the  ordinary  personal  action  against  the 
tenant  and  his  assigns  for  the  recovery  of  the  rent  as  it  falls 
due.  This  remedy  always  exists  together  with,  or  in  the 
absence  of,  the  right  of  distress.3  In  the  common-law 
pleading,  the  form  of  action  varies  with  the  form  of  the 
deed,  in  which  the  rent  is  reserved  or  granted.  If  the  deed 
is  an  indenture,  covenant  will  lie,  if  a  deed  poll,  assumpsit 
is  the  proper  form  of  action,  while  the  action  of  debt  will 
lie  in  most  cases,  whether  the  instrument  be  an  indenture 
or  a  deed  poll.4  Sometimes,  in  the  creation  of  a  fee-farm 
rent,  a  right  of  entry  and  forfeiture  is  granted,  which  turns 
the  estate  into  one  upon  condition.  "  Or  the  right  of  entry 
is  only  granted  for  the  purpose  of  giving  the  possession  of 
the  premises  to  the  grantee  of  the  rent,  to  reimburse  him- 
self for  the  accrued  rent  out  of  the  profits  of  the  land. 
Whether  the  entry  results  in  a  total  or  only  a  partial  for- 

'  2  Washb.  on  Real  Prop.  278,  293 ;  3  Kent's  Com.  472 ;  Coburn  v.  Har- 
ney, 18  Wis.  147  ;  Grant  v.  Whitwell,  9  Iowa,  154. 

2  2  Washb.  on  Real  Prop.  278,  279 ;  Guild  v.  Rogers,  8  Barb.  502 ;  3  Kent's 
Com.  473  n ;  2  Dane's  Abr.  451. 

3  2  Washb.  on  Real  Prop.  479;  Swasey  v.  Little,  7  Pick.  296;  Van  Rens- 
selaer v.  Bonesteel,  24  Barb.  365;  Van  Rensselaer  v.  Slingerland,  26  N.  V. 
587;  Van  Rensselaer  v.  Read,  26  N.  T.  564;  Van  Rensselaer  v.  Dennison,  35 
N.  Y.  400. 

*  2  Washb.  on  Real  Prop.  281 ;  Parker  v.  Webb,  3  Salk.  5 ;  Duppa  v. 
Mayo,  1  Saund.  281;  Vyvyan  v.  Arthur,  1  B.  &  C.  410;  Goodwin  v.  Gilbert. 
9  Mass.  510;  Adams  v.  Bucklin,  7  Pick.  121 ;  Newell  v.  Hill,  2  Mete.  180;  Bur- 
bank  v.  Pillsbury,  48  N.  H.  476;  Johnson  v.  Muzzy,  45  Vt.  419;  Hinsdale  v. 
Humphrey,  15  Conn.  433;  Gale  v.  Nixon,  6  Cow.  445;  Trustees  v.  Spencer,  T 
Ohio,  149. 

495 


§    646  RENTS.  [part   II. 

feiture  of  the  estate,  the  grantee  can  'enforce  his  right  to 
the  possession  by  the  ordinary  common-law  action,  by  writ 
of  assize,  or  by  ejectment.1  The  remedies  vary  greatly  ac- 
cording to  the  terms  of  each  grant,  and  the  local  statute  law 
of  each  State.  For  a  more  detailed  statement  of  the  ap- 
propriate remedies,  the  reader  is  referred  to  these  statutes. 

1  2  Washb.  on  Real  Prop.  279,  280 ;  Co.  Lit.  201,  note  85,  202 ;  Farley  v. 
Craig,  11  N.  J.  L.  262.  See  Stephenson  v.  Haines,  16  Ohio  St.  478 ;  Marshall  v. 
Conrad,  5  Call,  364. 

496 


chaptee  xyn. 

LICENSES. 

Section  651.  "What  is  a  license  ? 

652.  Revocation  of  the  license. 

653.  Revocation  of  license  —  Continued. 

654.  How  licenses  are  created. 

§  651.  What  is  a  license?  —  A  license  is  an  authority 
or  power  to  make  use  of  land  in  some  specific  way,  or  to 
do  certain  acts  or  a  series  of  acts  upon  the  land  of  another. 
It  differs  from  an  easement  in  that  it  is  not  created  by  deed 
or  by  prescription,  and  hence  is  not  a  right  or  interest  issu- 
ing out  of  land,  no  jus  in  re ;  simply  a  naked  authority.1 
A  license  is  a  personal  interest  or  right,  which  is  terminated 
by  the  death  of  either  the  licenser  or  licensee,  and  which 
cannot  be  assigned  without  the  consent  of  the  licenser.2 
The  licensee  must  exercise  his  authority  in  a  reasonably 
prudent  manner,  and  he  will  be  held  liable  for  all  damages 
resulting  from  his  negligence  or  unskilfulness ;  but  he  will 
not  be  responsible  for  any  damage,  which  is  but  the  natural 
consequence  of  the  exercise  of  his  authority.3 

1  Taylor  v.  "Waters,  7  Taunt.  374;  Cook  v.  Stearns,  11  Mass.  533;  Blaisdell 
v.  Railroad,  51  N.  H.  485 ;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72 ;  Murnford  v.  Whit- 
ney, 15  Wend.  5s0;  Bridges  v.  Purcell,  1  Uev.  &  B.  486. 

2  Wickham  v.  Hawker,  F.  M.  &  W.  77;  Coleman  v.  Foster,  37Eng.  Law  & 
Eq.  489 ;  Emerson  v.  Fisk,  6  Me.  200 ;  Buggies  v.  Lesure,  24  Pick.  187  ;  Cowles 
v.  Kidder,  24  N.  H.  364;  Howe  v.  Batchelder,  49  N.  H.  204;  Blaisdell  v.  Rail- 
road, 51  N.  H.  485;  Prince  v.  Case,  10  Conn.  375;  Jackson  v.  Babcock,  4 
Johns.  418;  Wolfe  v.  Frost,  4  Sandf.  Ch.  93;  Snowden  v.  Wilas.  19  Ind.  13. 

3  Selden  v.  Del.  &  Hud.  Canal  Co.,  29  N.  Y.  640;  Pratt  v.  Ogden,  34  N.  Y. 
20;  Kent  v.  Kent,  18  Pick.  569;  Prince  v.  Case,  10  Conn.  375;  Sampson  v. 
Burnside,  13  N.  H.  265;  Fentiman  v.  Smith,  4  East,  107 ;  Webb  v.  Pater- 
noster, Palmer,  71. 

32  497 


§    652  LICENSES.  [PART    II. 

§  652.  Revocation  of  the  license.  —  Since  the  license 
does  not  create  any  interest  or  estate  in  the  land,  as  a  gen- 
eral proposition  it  would  seem  that  the  continued  enjoyment 
of  the  license  should  depend  upon  the  will  of  the  licenser. 
But  the  antagonism  of  interest  and  consequent  loss,  arising 
from  the  grant  and  subsequent  revocation  of  a  license,  have 
produced  no  little  confusion  in  the  decisions  of  the  courts. 
As  long  as  the  license  remains  executory  there  can  certainly 
be  no  fixed  indefeasible  right  to  its  enjoyment.  The  licensee 
has  no  remedy  by  which  he  may  enjoin  the  licenser  from 
prohibiting  the  exercise  of  his  license.1  The  power  to  re- 
voke is  undoubted.  So  also  is  this  the  case  with  an  executed 
license,  where  the  revocation  will  leave  the  parties  in  the 
same  condition  as  they  were  before  the  license  was  granted. 
Such  would  be  the  case  of  a  license  to  fish  or  hunt  upon 
another's  land,  for  the  purpose  of  witnessing  some  per- 
formance, as  where  one  purchases  a  ticket  for  the  theatre. 
All  such  licenses  may  be  revoked  at  the  will  of  the  licenser. 
And  in  the  case  of  a  theatrical  performance  or  other  show, 
the  licensee  or  ticket  holder  may  be  bidden  to  leave,  and 
ejected  by  force  if  he  refuses  to  do  so,  even  though  there  is 
no  valid  cause  for  his  removal.2  But  the  revocation  of  the 
license  will  not  be  permitted  to  have  a  retroactive  effect,  so 
as  to  make  the  acts  done  by  the  licensee  upon  the  land  be- 
fore revocation  a  trespass,  or  to  make  him  liable  for  dam- 

i  Cook  v.  Stearns,  11  Mass.  533 ;  Sterling  v.  Warden,  57  N.  H.  217;  12  Am. 
Rep.  80 ;  Dodge  v.  McClintock,  47  N.  H.  483 ;  Miller  v.  Auburn,  etc.,  R.  R., 
6  Hill,  61 ;  Veghte  v.  Raritan  Co.,  19  N.  J.  Eq.  154. 

2  Wood  v.  Leadbitter,  13  M.  &.  W.  838;  Coleman  v.  Foster,  37  Eng  L.  & 
Eq.  489;  Morse  v.  Copeland,  2  Gray,  302;  Sampson  v.  Burnside,  13  N.  H. 
264;  Hill  v.  Hill,  113  Mass.  103;  18  Am.  Rep.  455;  McCrea  v.  Marsh,  12 
Gray,  213;  Burton  v.  Scherff,  1  Allen,  134;  Desloge  v.  Pearce,  38  Mo.  599. 
See  Ford  v.  Wbitlock,  27  Vt.  268 ;  Hays  v.  Richardson,  1  Gill  &  J.  383 ;  Fahr 
r.  Dean,  26  Mo.  119.  Likewise,  a  license  to  cut  trees  is  revocable.  Hill  tv 
Hill,  113  Mass.  103;  18  Am.  Rep.  455;  Giles  v.  Simonds,  15  Gray,  444;  Til- 
lotson  v.  Preston,  7  Johns.  285 ;  Westcott  v.  Delano,  20  Wis.  516 ;  Roffey  y. 
Henderson,  17  Q.  B.  586. 
498 


CH.  XVII.]  LICENSES.  §    653 

ages  flowing  naturally  from  the  exercise  of  his  authority.1 
And  if  there  is  a  valid  subsisting  contract  for  the  grant  and 
exercise  of  the  license  the  revocation  of  the  license  will  con- 
stitute a  breach  of  the  contract,  for  which  the  licenser  will 
be  liable  in  an  action  for  damages.  And  so  also,  if  in  the 
exercise  of  the  authority  the  licensee  has  taken  property  of 
his  own  upon  the  land  (as,  for  example,  where  he  erects  a 
building),  or  acquires  a  title  to  personal  property  formerly 
the  property  of  the  licenser  (as  where  the  license  is  to  go 
upon  the  land  and  cut  trees  for  his,  the  licensee's,  own  use), 
a  reasonable  time  must  be  given  to  the  licensee  within  which 
to  remove  his  property.  To  that  extent  under  such  circum- 
stances is  the  license  irrevocable.  The  revocation  does  not 
vest  in  the  licenser  the  property  of  the  licensee  found  upon 
the  land.2 

§  653.  Revocation  of  license  —  Continued. — Where  the 
licensee  in  the  exercise  of  his  license  has  been  put  to  con- 
siderable expense,  and  a  revocation  of  the  license  results  in 
great  damage  to  the  licensee,  because  of  the  impossibility 
to  place  the  parties  in  statu  quo,  whether  the  license  can  be 
revoked  has  been  differently  decided.  A  large  number  of 
the  courts  have  held  that  such  a  license  is,  nevertheless,  re- 
vocable, and  the  revocation*  will  not  render  the  licenser 
liable  to  any  action  for  damages.3     While,  on  the  other 

1  Hewlins  v.  Shippam,  5  B.  &  C.  221;  Cook  v.  Stearns,  11  Mass.  533; 
Stevens  v.  Stevens,  11  Mete.  251 ;  Kent  v.  Kent,  18  Pick.  569;  Foot  v.  New 
Haven,  etc.,  Co.,  23  Conn.  223 ;  Prince  v.  Case,  10  Conn.  378 ;  Selden  v.  Del- 
&  Hud.  Canal  Co.,  29  N.  Y.  639;  Pratt  v.  Ogden,  34  N.  Y.  20;  Barnes  v. 
Barnes,  6  Vt.  388 ;  Bridges  v.  Purcell,  1  Dev.  &  B.  496. 

2  Wood  v.  Leadbitter,  13  M.  &  W.  856;  Ashmun  v.  Williams,  8  Pick. 
402;  Churchill  v.  Hulbert,  110  Mass.  42;  14  Am.  Rep.  678;  Burk  v.  Hollis, 
98  Mass.  56;  Nettleton  v.  Sikes,  8  Mete.  34;  Barnes  v.  Barnes,  6  Vt.  388 ; 
White  v.  Elwell,  48  Me.  360;  Town  v.  Hazen,  51  N.  H.  596 ;  Parsons  v.  Camp, 
11  Conn.  525;  Smith  v.  Goulding,  6  Cush.  155;  Desloge  v.  Pearce,  38  Mo. 
599. 

3  Cocker  v.  Cowper,  1  Cromp.  M.  &  R.  418;  Fentiman  v.  Smith,  4  East, 
107;  Owen  v.  Field,  12  Allen  457;  Cook  v.  Stearns,  11  Mass.  533;  Stevens  v. 

499 


§   653  licenses.  [pai:t  ir. 

hand,  a  number  of  the  cases  maintain,  on  the  equitable 
grounds  of  estoppel  and  part  performance  of  a  contract, 
that  the  license  is  irrevocable  in  such  cases.1  If  the  authority 
is  connected  with,  or  is  exercised  in  pursuance  of,  a  contract 
for  the  grant  of  an  easement,  the  licensee  may  prevent  a 
revocation  by  an  action  for  specific  performance  of  the  con- 
tract for  an  easement.'-  But  a  simple  license,  which  is  not 
in  the  nature  of  an  executory  contract  for  the  future  grant 
of  an  easement,  not  being  an  incorporeal  hereditament  or 
an  estate  in  lands,  is  not  an  indefeasible  fixed  right,  andean 
therefore  be.  revoked.  Perhaps  a  failure  to  observe  this 
distinction  has  been  the  cause  of  the  doubt  and  confusion  to 
be  met  with  in  the  cases.3     Perhaps  the  better  rule  is  that 

Stevens,  11  Mete.  251 ;  Batchelder  v.  Wakefield,  8  Cush.  252  ;  Foster  v.  Brown- 
ing, 4  R.  I.  47 ;  Harris  v.  Gillingham,  6  N.  II.  9;  Houston  v.  Laffee,  46  N.  H. 
507;  Sampson  v.  Burnside,  13  N.  H.  264;  Foot  v.  New  Haven,  etc.,  Co.,  23 
Conn.  223;  Selden  v.  Del.  &  Hud.  Canal  Co.,  29  N.  Y.  639;  Thompson  v. 
Gregory,  4  Johns.  81 ;  Slumlord  v.  Whitney,  15  Wend.  380 ;  Ex  parte  Coburn, 
1  Cow.  568;  Dexter  v.  Hazen,  10  Johns.  246;  Hetfield  v.  Centre  R.  R.,  29  N. 
J.  L.  571;  Hall  v.  Chaffers,  13  Vt.  150:  Trammell  v.  Trammell,  11  Rich. 
474;  Addison  v.  Hack,  2  Gill,  221  ;  Bridges  v.  Pureell,  1  Dev.  &  B.  492; 
Woodward  v.  Seeley,  11  111.  157;  Clute  v.  Carr.  20  Wis.  533 ;  Htzleton  U.Put- 
nam, 3  Chand.  (Wis  )  117. 

1  Rerick  v.  Kern,  14  Serg.  &  R.  267 ;  Lacey  v.  Arnett,  33  Pa.  St.  169 :  Huff 
v.  McCauley,  53  Pa.  St.  209;  Cook  v.  Prigden,  45  Ga.  331 ;  Wiekersham  ». 
Orr,  9  Iowa,  260;  Beatty  v.  Gregory,  17  Iowa.  114;  Snowden  v.  WTilas,  19 
Ind.  14.  In  others  of  the  States,  a  middle  ground  is  taken,  that  the  licenser 
cannot  revoke  the  license  until  he  has  reimbursed  the  licensee  for  his  expendi- 
tures. See  Woodbury  v.  Parshley,  7  N.  H.  237  ;  Addison  v.  Hack,  2  Gill,  221 ; 
Rhodes  v.  Otis,  33  Ala.  600,  and  cases  cited  supra  from  Iowa  and  Indiana. 

2  Veghte  v.  Raritan  Co.,  19  N.  J.  Eq.  153 ;  Williamston,  etc.,  R.  R,  v.  Bat- 
tle, 66  N.  C.  546. 

3  A  further  distinction,  drawn  from  the  law  of  Easement*,  would  serve  to 
suggest  the  most  rational  doctrine.  If  the  license  only  involves  the  abandon- 
ment of  the  licenser's  easement  upon  the  licensee's  land,  and  imposes  no 
direct  burden  upon  the  licenser's  land,  the  license  is  irrevocable,  for  an  ease- 
ment may  be  abandoned  by  parol.  But  if  the  license  involves  the  permanent 
use  of  the  licenser's  land,  and  structures  are  to  be  maintained  upon  it,  since 
that  is  nothing  more  than  the  grant  of  an  easement,  it  may  be  revoked,  if 
not  granted  by  deed.  This  appears  to  he  the  position  of  the  Illinois  courts. 
See  Russell  v.  Hubbard,  59  111.  337;  Woodward  v.  Seeley,  11  111.  157; 
1  Washb.  on    Real  Prop.    636,   639.     See  also  Winter  v.  Brockwell,  8  East, 

500 


CH.  XVII.]  LICENSES.  §    654 

where  the  licenser  revokes  his  license  in  violation  of  a  valid 
subsisting  contract  for  its  continuance,  and  thereby  pro- 
duces damage  to  the  licensee,  such  damages  should  be,  and 
are,  recoverable  in  an  action  for  the  breach  of  the  contract.1 
But,  as  a  corollary  to  the  above  proposition,  it  may  be  stated 
that  where  the  length  of  the  enjoyment  of  the  license  is  in- 
definite, as  where  the  license  is  to  erect  and  maintain  a 
house,  that  being  a  bargain  for  a  permanent  interest  in  land 
in  the  nature  of  an  easement,  it  can  be  granted  only  in  the 
way  in  which  such  interests  are  required  to  be  created,  viz.: 
by  deed,  and  therefore  no  action  for  damages  will  lie  for 
its  revocation.  But  a  license  upon  sufficient  consideration 
to  cut  and  take  away  a  certain  number  of  trees,  or  to  dig 
for  minerals  for  a  specific  time,  and  the  like,  are  valid,  sub- 
sisting contracts,  and  the  revocation  of  the  license  would  be 
a  breach  of  it,  for  which  the  licenser  may  be  held  liable. 

§  654.  How  licenses  are  created.  —  Licenses  may  be 
created  either  by  express  agreement,  by  parol,2  or  they  may 
be  implied  from  the  inducements  and  representation  of  the 
land  owner.  Thus,  merchants,  professional  men  and  arti- 
sans, impliedly  give  the  public  a  license  to  enter  their 
places  of  business  for  the  purpose  of  transacting  business. 
Such  would  also  be  the  case  between  persons  sustaining 
social  relations,  in  respect  to  the  right  to  enter  each  other's 
premises  for  the  purpose  of  visiting.3 

308;  Hewlins  v.  Shippam,  6  B.  &  C.  221 ;  Morse  v.  Copeland,  2  Gray,  202; 
Dyer  v.  Sandford,  9  Mete.  395 ;  Foot  v.  New  Haven,  etc.,  Co.,  20  Conn. 
223 ;  Veghte  v.  Raritan  Co.,  19  N.  J.  Eq.  153 ;  Addison  v.  Hack,  2  Gill,  211 ; 
Jamieson  v.  Milleman,  3  Duer,  255;  Hazleton  v.  Putnam,  4  Chand.  (Wis.) 
124. 

1  Whitmarsh  t>.  Walker,  1  Mete.  316 ;  Giles  v.  Simonds,  15  Gray,  444. 

2  Wood  v.  Leadbitter,  13  M.  &  W.  838 ;  King  v.  Horndon,  4  M.  &  Sel. 
662;  Muskettv.  Hill,  5  Bing.  N.  C.  694;  Doolittle  v.  Eddy,  7  Barb.  74;  Ex 
parte  Coburn,  1  Cow.  568;  Blaisdell  v.  R.  R.,  51  N.  H.  485. 

3  Martin  v.  Houghton,  45  Barb.  60;  Adams  v.  Truman,  12  Johns.  408; 
Gowan  v.  Phila.  Exchange  Co.,  5  Watts  &  S.  141 ;  Kay  v.  Penn.  R.  R.,  65  Pa. 
St.  273;  Sterlings  Warden,  51  N.  H.  231  ;  12  Am.  Rep.  80. 

501 


PART  III. 


TITLES. 

Ohapteb    XYIII.   General    Classification"   or 

Titles. 

XIX.   Title  by  Descent. 

XX.   Title   by  Original  Acquisi- 
tion. 

XXI.    Title  by  Grant. 

XXII.   Deeds,  Their  Kequisites  and 
Component  Parts. 

XXIII.    Title  by  Devise. 


503 


CHAPTER  XVIII. 

TITLES GENERAL  CLASSIFICATION  OF  TITLES. 

Section  659.  What  is  title  ?  —  By  descent  and  purchase. 
660.  Original  and  derivative  titles. 

§  659.  What  is  title  ?  —  By  descent  and  purchase.  —  A 

title  is  the  means  by  which  one  may  acquire  a  right  of  own- 
ership in  things  ;  Justa  causa  possidendi  quod  nostrum  est.1 
When  applied  to  real  property,  titles  may  be  divided  into 
two  general  classes,  title  by  descent  and  title  by  purchase. 
Title  by  descent  is  that  title  which  one  acquires  by  law  as 
heir  to  the  deceased  owner.  It  is  cast  upon  the  heir  with 
or  without  his  consent.  His  assent  is  not  necessary,  and 
he  cannot  by  any  disclaimer  divest  himself  of  the  title  so 
acquired.2  Every  other  kind  of  title,  whether  vested  by  act 
of  the  parties  or  by  operation  of  the  law,  is  called  a  title  by 
purchase.  The  party,  in  whose  favor  it  is  created,  must 
accept  it  in  order  that  any  title  may  pass,  either  expressly 
or  by  acts  which  clearly  indicate  his  assent.  But  he  cannot 
be  compelled  to  accept  unless  he  has  placed  himself  under 
obligations  by  a  valid  contract  of  sale.3 

§  6G0.  Original  and  derivative  titles. — Titles  by  pur- 
chase may  be  again  subdivided  into  original  and  derivative. 

1  Co.  Lit.  345  b ;  3  Washb.  on  Real  Prop.  1,  2 ;  Bart,  on  Real  Prop.,  sect. 
314. 

2  Co.  Lit.  191  a,  note  77,  sect.  V.,  1 ;  Bac.  Law  Tracts,  128 ;  2  Bla.  Com.  201 ; 
Williams  on  Real  Prop.  97 ;  Womack  v.  VVomack,  2  La.  An.  339.  But  he 
may  formally  renounce  in  Louisiana.     Reed  v.  Crocker,  12  La.  An.  436. 

»  3  Cruise  Dig.  317;  Co.  Lit.  18  b,  note  106;  4  Kent's  Com.  373;  Williams 
on  Real  Prop.  96,  97;  Nicolson  v.  Wardsworth,  2  Swanst.  365,  372. 

505 


§    660  TITLES GENERAL    CLASSIFICATION.       [PART    III. 

An  original  title  is  one  which  is  acquired  solely  by  act  of 
the  party  claiming  it,  and  is  obtained  by  his  entry  into  pos- 
session. It  is  a  general  rule  of  both  ^atural  and  civil  law, 
that  things  under  dominion  of  no  person  may  become  the 
property  of  any  one  by  mere  entry  into  possession,  and  it 
includes  not  only  those  things  which  have  never  been  under 
the  dominion  of  any  one,  but  also  those,  the  dominion  over 
which  has  been  lost  or  abandoned.  Derivative  title  is  that 
by  which  property  is  acquired  from  another,  in  whom  the 
right  of  property  has  been  vested.  It  involves  the  idea  of 
a  transfer  or  assignment  of  the  right  of  property  from  one 
to  another.  This  transfer  may  be  effected  by  act  of  the 
former  owner,  as  by  conveyance  inter  vivos,  or  testamentary 
disposition,  or  it  may  be  by  operation  of  law.1 

1  This  subdivision  is  very  generally  used  by  the  continental  jurists  instead 
of  the  division  of  titles  into  descent  and  purchase.  See  HoltzendorfFs  Ency- 
clopaedic der  Rechtswissenschaft,  pp.  386-390.  It  is  here  introduced  in  the 
belief  that  the  distinction  might  serve  to  explain  a  few  difficult  questions 
■which  arise  in  respect  to  several  kinds  of  titles,  more  notably  titles  by  limita- 
tion and  estoppel,  as  they  are  called  by  the  different  authors.  It  will  be 
observed  that  in  the  present  work  they  are  not  considered  as  modes  of  acquir- 
ing titles  —  only  modes  of  perfecting  titles  already  acquired  by  destroying  or 
nullifying  other  outstanding  rights  or  titles  in  other  persons.  See  post,  sects. 
717,  729,  730. 
506 


CHAPTER   XIX. 


TITLE  BY  DESCENT. 

Section  663.  Definition. 

664.  Lex  loci  rei  sitce. 

665.  Consanguinity  and  affinity. 

666.  How  lineal  heirs  take. 

667.  Lineal  consanguinity  in  the  ascending  series. 

668.  Collateral  heirs. 

669.  Computation  of  collateral  relationship. 

670.  Ancestral  property. 

671.  Kindred  of  the  whole  and  half  blood. 

672.  Advancement  —  Hotchpot. 

673.  Posthumous  children. 

674.  Illegitimate  children. 

675.  Alienage  a  bar  to  inheritance. 

§  663.  Definition. — Title  by  descent  is  that  title,  by  which 
one  acquires  by  operation  of  law  upon  the  death  of  the  owner 
the  estates  of  inheritance,  which  the  deceased  has  not  dis- 
posed of  in  any  other  manner.  The  person  from  whom  the 
property  descends  is  called  the  ancestor.1  The  person  who 
is  appointed  by  the  law  to  take  the  estates  is  called  the 
heir.  Technically,  one  who  takes  property  under  a  will  is 
not  an  heir.  And  the  word  heir  is  also  confined  to  those 
persons  who  take  the  real  estate.  One  cannot  be  an  heir  to 
personal  property.2     The  heirs  cannot  be  ascertained  until 

1  In  that  sense  a  child  might  be  the  ancestor  of  his  parents,  a  grandchild 
the  ancestor  of  his  grandparents.  3  Washb.  18 ;  Prickett  v.  Parker,  3  Ohio  St. 
390;  Williams  on  Pieal  Prop.  105.  This  was  opposed  to  the  common  law, 
according  to  which  "  the  inheritance  lineally  descends,  but  never  lineally 
ascends."     See  post,  667. 

2  Bac.  Law  Tracts,  128;  Co.  Lit.  191  a,  note  77;  Donahue's  Estate,  36  Cal. 
329. 

507 


§    663  TITLE   BY    DESCENT.  [PART    III- 

the  death  of  the  ancestor.  Nemo  est  hoeres  viveutis.1  The 
heir  never  takes  in  pursuance  of  the  deceased  owner's  in- 
tention or  will;  consequently  no  one,  who  by  law  is  entitled 
to  the  property  as  heir,  can  be  shut  out  from  his  inheritance 
by  any  act  of  the  ancestor,  unless  such  act  amounts  to  a 
disposition  of  the  property  by  will.2  And  even  where  a 
will,  disposing  of  all  the  ancestor's  property,  is  produced, 
if  it  be  shown  that  the  omission  of  the  name  of  an  heir, 
especially  if  it  be  a  child  or  a  grandchild,  is  the  result  of  an 
accident,  and  that  the  testator  fully  intended  that  he  also 
should  take  under  the  will,  such  heir  will  be  permitted  to 
take  the  share  of  the  estate  to  which  he  would  have  been 
entitled  if  the  ancestor  had  died  intestate.  And  in  the  ab- 
sence of  direct  proof  of  the  testator's  intention,  the  failure 
to  mention  the  particular  heir  will  raise  the  presumption 
that  the  omission  was  accidental.3  Immediately  upon  the 
death  of  the  ancestor  the  title  to  all  his  estates  of  inheri- 
tance vests  in  the  heir  or  heirs,  subject  to  the  widow's  dower 
and  husband's  tenancy  by  the  curtesy,  and  the  claims  of 
the  ancestor's  creditors.4     He  is  entitled  to  the  rents  and 

1  2  Bla.  Com.  208;  3  Washb.  on  Real  Prop.  6;  Williams  on  Real  Prop.  96. 
But  in  common  parlance  persons  are  recognized  as  possible  heirs  to  a  certain 
individual  if  they  should  survive  him.  And  in  view  of  the  existence  of  this 
possibility,  the  common  law  made  use  of  the  two  expressions,  heirs  pre- 
sumptive, and  heirs  apparent.  An  heir  presumptive  is  one  who  would  be  the 
heir  if  the  ancestor  were  to  die  at  the  contemplated  time,  but  whose  possibil- 
ity of  inheritance  may  be  destroyed  b}7  the  birth  of  some  one  more  nearly  re- 
lated, as  well  as  by  his  death  before  the  ancestor.  An  heir  apparent  was  one 
who  was  sure  to  inherit,  if  the  ancestor  died  in  his  life  time.  These  terms  are 
of  no  practical  importance,  as  no  rights  of  property  are  acquired  by  such 
parties  which  the  law  in  any  way  recognizes.  See  Lockwood  v.  Jessup,  9 
Conn.  228. 

2  Augustus  v.  Seabolt,  3  Mete.  (Ky.)  161  ;  Doe  v.  Lavins,  3  Ind.  441;  Mc- 
Intire  v.  Cross,  Id.  444;  Denson  v.  Anthey,  21  Ala.  205;  Wright  v.  Hicks,  12 
Ga.  155;  Haxtum  v.  Corse,  2  Barb.  Ch.  506;  Roosevelt  v.  Fulton,  7  Cow.  71. 

3  Beck  v.  Metz,  25  Mo.  70;  Gage  v.  Gage,  29  N.  H.  533;  Bancrofts.  Ives, 
3  Gray,  367  ;  Shelby  v.  Shelby,  6  Dana,  60 ;  Bradley  v.  Bradley,  24  Mo.  311. 

1  Willis  v.   Watson,   5  111.  64 ;  Hays  v.  Jackson,  6  Mass.  149 ;  Wilson  v. 
Wilson,  13  Barb.  252;  Shanks  v.  Lucas,  4  Blackf.  476;  Chubb  v.  Johnson,  11 
508 


•CH.  XIX.]  TITLE    BY   DESCENT.  §    664 

profits  of  the  estate  until  sold  for  the  benefit  of  the  creditors, 
even  though  the  estate  is  insolvent.1  The  heir  need  not 
offer  proof  that  his  ancestor  died  intestate.  Intestacy  is 
presumed  until  a  will  is  produced.2 

§  664.  Lex  loci  rei  sitae.  — The  descent  of  real  property 
is  governed  by  the  law  of  the  place  where  the  land  is  situated, 
the  lex  loci  rei  sitae.  The  law  of  the  domicile,  lex  domicilii, 
does  not  apply  to  real  property.  And  that  law  of  descent 
governs,  which  was  in  force  at  the  decease  of  the  ancestor.3 
The  law  of  descent  varies  according  to  the  civil  polity  of  each 
State,  or,  as  Blackstone  has  it,  it  is  "  the  creature  of  civil 
polity  and  juris  positivi."  In  every  State  of  the  American 
Union  there  is  a  statute  regulating  the  descent  of  real  prop- 
erty, and  for  any  special  question  arising  under  the  law  of 
descent  reference  must  be  had  to  the  statute  of  the  State  in 
which  the  land  lies.  But  these  statutes  have  many  points 
in  common,  and  are  controlled  by  certain  general  principles 
which  may  be  collated  and  presented  in  a  work  of  this  char- 
acter. But  for  the  minor  details  of  the  law,  the  inquirer 
must  look  to  the  State  statutes,  an  excellent  compendium  of 
which  may  be  found  in  the  third  volume  of  Mr.  Washburn's 
Treatise  on  the  Law  of  Real  Property,  pp.  21,  etseq. 

Texas,  469;  Vansycle  v.  Richardson,  13  111.  171 ;  Baxter  v.  Bradbury,  20  Me. 
260;  Coppinger  v.  Rice,  33  Cal.  408;  C-well  v.  "Weston,  20  Johns.  414;  Far- 
rell  v.  Enright,  12  Cal.  450;  Marvin  v.  Schilling,  12  Mich.  350;  Watkins  v 
Hopkins,  16  Pet.  25;  Hillhouse  v.  Chester,  3  Day,  166.  See  contra,  Telfair 
v.  Roe,  2  Cranch,  407 ;  Albriton  v.  Bird,  R.  M.  Charlt.  93. 

1  Gibson  v.  Farley,  16  Mass.  280;  Boynton  v.  Peterborough,  etc.,  R.  R.  Co., 
4  Cush.  467;  Lobdcll  v.  Hayes,  12  Gray,  238;  Newcomb  v.  Stebbins,  9  Mete. 
640;  Green  v.  Massie,  13  111.  363;  Allen  v.  Van  Houton,  19  N.  J.  L.  47. 
Contra,  Branch  Bk.  v.  Fry,  22  Ala.  790. 

2  Lyon  v.  Kain,  36  111.  368;  Baxter  v.  Bradbury,  20  Me.  260;  Stephenson 
v.  Doe,  8  Blackf.  508. 

8  Story  on  Confl.,  sect.  484;  Potter  v.  Titcorab,  22  Me.  300;  Smith  v. 
Kelly,  23  Miss.  167  ;  Miller  v.  Miller,  10  Mete.  393  ;  Marshall  v.  King,  24  Miss. 
86;  McGaughey  v.  Henry,  15  B.  Mon.  383;  Jones  v.  Marable,  6  Humph.  116; 
Price  v.  Tally,  10  Ala.  946 ;  Eslava  v.  Farmer,  7  Ala.  643. 

509 


§    665  TITLE    BY   DESCENT.  [PAKT    HI. 

§  665.  Consanguinity  and  affinity.  —  Only  those  persons 
can  claim  as  heirs  of  a  deceased  intestate  who  are  in  some 
way  related  to  him.  Relationship  is  of  two  kinds,  consan- 
guinity and  affinity.  Consanguinity  is  that  relationship 
which  arises  from  a  community  of  blood,  and  exists  between 
persons  who  are  descended  from  a  common  ancestor.  This 
common  ancestor  is  called  the  stirps,  or  root.  Consan- 
guinity is  again  divided  into  lineal  and  coflatervl.  Lineal 
consanguinity  exists  between  persons  who  descend  one  from 
the  other  in  the  direct  or  single  line  of  descent.  Father, 
grandfather,  etc.,  in  the  ascending  series,  and  son,  grand- 
son, etc.,  in  the  descending  series,  are  related  by  lineal 
consanguinity.  Collateral  consanguinity  is  where  the  rela- 
tionship is  traced  through  different  lines  of  descent  up  to 
the  common  ancestor.  Thus,  brothers,  cousins,  nephews 
and  uncles,  etc.,  are  related  by  collateral  consanguinity, 
respectively,  through  the  common  father  and  grandfather.1 
Affinity  is  the  relationship  created  between  parties  by  mar- 
riage, either  of  themselves,  or  of  their  respective  relatives. 
Thus,  husband  and  wife,  and  their  respective  fathers  and 
mothers-in-law,  and  the  like,  are  related  by  affinity.  At 
common  law  only  kindred  by  consanguinity  could  inherit 
from  the  deceased.  And  this  rule  was  so  strictly  observed 
that  even  the  husband  or  wife  could  not  lay  claim  to  the 
property  of  each  other  as  heir.  It  would  be  escheated  to 
the  State  instead  of  vesting  in  such  relations.'2  But  at  the 
present  day,  in  a  large  number  of  the  American  States, 
husband  and  wife  are  made  capable  by  statute  of  inheriting 
from  each  other.  In  some  States  they  inherit  equally  with 
the  children  and  the  descendants  of  deceased  children,  while 
in  others  they  inherit  only  in  the  absence  of  lineal  descend- 

1  3  Washb.  on  Keal  Prop.  9,  10;  2  Bla.  Com.  202,  206. 

2  2  Bla.  Cora.  246.  See  Esty  v.  Clark,  101  Mass.  36;  3  Am.  Kep.  320; 
Lord  v.  Bourne,  63  Me.  368;  18  Am.  Kep.  234;  Cleaver  o.  Cleaver,  39  Wis. 
96 ;  20  Am.  Ptop.  30. 

510 


CH.  XIX.]  TITLE    BY    DESCENT.  §    66Q 

ants,  and  in  some  thev  are  even  postponed  to   collateral 
heirs.1 

§  ti(>6.  How  lineal  heirs  take.  —  According  to  the  com- 
mon law,  the  real  estate  descended  to  the  eldest  son,  to  the 
exclusion  of  the  other  sons  and  daughters;  and  if  there  be 
no  sons,  then  the  daughters  inherited  in  equal  shares.  This 
was  known  as  the  law  of  primogeniture.2  And  even  where 
according  to  local  custom,  as  was  the  case  with  lands  held 
by  tenure  of  gavelkind,  the  law  of  primogeniture  did  not 
prevail,  the  sons  would  inherit  equally  to  the  exclusion  of 
the  daughters  and  their  descendants.3  But  neither  of  these 
English  rules  has  ever  been  in  force  in  this  country,  and 
the  universal  rule  is  that  the  lineal  descendants  in  the  de- 
scending series  inherit  equally,  no  distinction  being  made 
between  males  and  females.4  If  the  lineal  descendants  are 
all  in  the  same  degree  removed  from  the  intestate  ancestor, 
they  will  inherit  equally,  and  are  said  to  take  per  capita . 
But  if  they  are  removed  in  different  degrees,  or  where  they 
consist  of  a  son,  or  daughter,  and  the  children  of  a  deceased 
son  or  daughter,  the  children  would  inherit  only  that  share  of 
the  deceased's  estate  to  which  their  father  or  mother  would 
have  been  entitled,  if  he  or  she  had  survived  the  deceased. 
Thus,  in  the  given  case,  the  estate  would  be  divided  into 
two  equal  parts,  the  surviving  son  or  daughter  taking  the 

1  See  Shaw  v.  Breese,  12  Ind.  392 ;  Nicholas  v.  Parczell,  21  Iowa,  265 ; 
Brown  v.  Belmarde,  3  Kan.  41 ;  Hammon  v.  Steer,  2  Gill  &  J.  14.  Statutory- 
rules  of  this  character  are  to  be  found  in  Alabama,  Arkansas,  California, 
Dakota,  Georgia,  Illinois,  Iowa,  Massachusetts,  Maryland,  Michigan,  Minne- 
sota, Missouri,  North  Carolina,  Nebraska,  Pennsylvania,  Rhode  Island,  South 
Carolina,  Vermont,  Wisconsin.  3  Washb.  on  Heal  Prop.  21,  note. 

2  3  Washb.  on  Real  Prop.  7;  1  Spence  Eq.  Jur.  175,  176;  2  Bla.  Com.  214, 
215. 

s  3  Washb.  on  Real  Prop.  7;  2  Bla.  Com.  234;  2  Bla.  Com.  84. 

*  3  Washb.  on  Real  Prop.  8,  9, 12 ;  Walker's  Am.  Law,  353  ;  4  Kent's  Com. 
878.  In  respect  to  the  equality  of  inheritance  by  lineal  heirs,  the  American 
law  bears  a  close  resemblance  to  the  Roman  law  of  descent.     Coop.  Just.  543. 

511 


§    668  TITLE    BY    DESCENT.  [PART    III. 

one  part,  while  the  other  part  would  be  divided  among  the 
children  of  the  deceased  child.  This  is  called  inheritance 
per  stirpes,  or  by  representation.  At  common  law  all  lineal 
descendants  took  per  stirpes,  but  the  rule  in  this  country  is 
generally  limited  to  the  case  of.  descendants  of  unequal 
degrees  of  removal  from  the  ancestor.1 

§  667.  Lineal  consanguinity  in  the  ascending  series.  — 

It  wTas  a  canon  of  the  common  law  that  the  inheritance  could 
never  fall  to  persons  related  to  the  deceased  in  the  ascend- 
ing series.  Thus,  parents,  grandparents,  etc.,  of  the  de- 
ceased could  not  inherit.2  If,  therefore,  there  were  no 
lineal  descendants,  i.e.,  issue,  the  property  would  have  de- 
scended to  the  collateral  kindred  to  the  exclusion  of  the 
lineal  relations  in  the  ascending  line.3  But  this  rule  has 
now  generally  been  changed  by  statute,  and  the  lineal  heirs 
in  the  ascending  series  will  take  in  preference  to  collateral 
kindred.4 

§  668.   Collateral  heirs.  —  But  if  there  be  no  lineal  de- 
scendants, and  no  lineal  heirs  in  the  ascending  line,  or  no 


1  Chase  Bla.  Com.  380.  n,  6;  Walker's  Am.  Law,  354;  4  Kent's  Com.  379, 
391,  408;  3  Washb.  on  Ileal  Prop.  12,  13.  See  Skinner  v.  Fulton,  39  111.  484; 
Quincy  v.  Higgins,  14  Me  309;  Stewart  v.  Collier,  3  Har.  &  J.  289;  Parker  v. 
Nims,  2  N.  H.  4G0;  Den  v.  Smith,  2  N.  J.  L.  7. 

2  3  Washb.  on  Real  Prop.  10;  2  Bla.  Com.  208,  209. 

3  3  Washb.  on  Real  Prop.  11;  2  Bla.  Com.  209;  Taylor  v.  Bray,  32  N.  J. 
L.  182. 

*  Williams  on  Real  Prop.  105,  10G  ;  Morris  v.  Ward,  36  N.  Y.  587 ;  2  Bla. 
Com.  220;  Kelsey  v.  Hardy,  20  N.  H.  479;  4  Kent's  Com.  395  n;  Delaney  v. 
Walker.  9  Port.  497;  Fowler  v.  Trewhitt,  10  Ala.  632;  Hays  v.  Thomas,  1  111. 
136 ;  Noland  v.  Johnson,  5  J.  J.  Marsh.  851.  The  rule  is  established  by  statute 
in  Alabama,  Arkansas,  California,  Connecticut,  Dakota,  Delaware,  Florida. 
Georgia,  Illinois,  Indiana,  Iowa,  Kansas,  Kentucky,  Louisiana,  Maine,  Massa- 
chusetts, Maryland,  Michigan,  Minnesota,  Mississippi,  Missouri,  Nebraska, 
Now  Hampshire,  New  Jersey,  New  York,  Ohio,  Oregon,  Pennsylvania,  Rhode 
Island,  South  Carolina,  Texas,  Tennessee,  Vermont,  Virginia,  Wisconsin. 
3  Washb.  on  Real  Prop.  21,  note. 
512 


CH.  XIX.]  TITLE    BY    DESCENT.  §    669 

statute  permitting  such  heirs  to  inherit,  the  estate  descends 
to  the  collateral  kindred  in  the  nearest  degree  of  relation- 
ship to  the  deceased.1  And  at  common  law  the  doctrine  of 
inheritance  per  stirpes,  or  by  representation,  as  above  ex- 
plained, was  applied  to  collateral  kindred  ad  infinitum  ;  but 
the  doctrine  in  the  United  States  has  generally  been  limited 
in  its  application  to  the  descendants  of  brothers  and  sisters, 
while  in  the  case  of  all  other  collateral  kindred  the  inherit- 
ance is  divided  per  capita.2 

§  G69.  Computation  of  collateral  relationship. — There 
■are  two  modes  of  computing  the  degree  of  collateral  rela- 
tionship; one  according  to  the  canon  and  common  law,  and 
the  other  according  to  the  civil  or  Roman  law.  By  the  first 
rule  the  relationship  is  ascertained  by  counting  the  number 
of  degrees  or  generations  accruing  between  the  common 
ancestor  and  the  most  remote  descendant.  According;  to 
this  mode  of  computation,  first  cousins  are  related  in  the 
second  degree  ;  so  also  are  nephews  and  uncles.  The  civil 
rule  is  to  count  the  number  of  degrees  or  generations  be- 
tween the  deceased  and  the  common  ancestor,  and  down 
again  to  the  descendant,  whose  relationship  with  the  deceased 
is  in  question.  Thus,  by  this  mode,  brothers  would  be 
related  in  the  second  degree,  cousins  in  the  fourth,  and 
nephew  and  uncle  in  the  third.3  In  the  American  States 
the  civil  mode  of  computation  is  generally  adopted  by  the 

1  2  Bla.Com.  220;  3  Washb.  on  Real  Prop.  11 ;  Williams  on  Real  Prop. 
106. 

2  Quinby  v.  Higgins,  14  Me.  309 ;  Levering  v.  Heighee,  2  Md.  Ch.  81 ;  Elli- 
cott  v.  Ellicott,  Id.  468;  Jackson  v.  Thurman,  6  Johns.  322;  Parker  v.  Nims, 
2  N.  H.  460;  Skinner  v.  Fulton,  39  111.  484.  This  limitation  is  established  by 
statute  in  Alabama,  California,  Connecticut,  Delaware,  Georgia,  Maine,  Mas- 
sachusetts, Mississippi,  Michigan,  Minnesota,  Maryland,  Wisconsin,  New 
Hampshire,  New  Jersey,  Oregon,  South  Carolina,  Tennessee,  Vermont.  In 
Pennsylvania  the  rule  is  more  extended,  but  not  unlimited.  3  Washb.  on  Real 
Prop.  21,  note. 

3  3  Washb.  on  Real  Prop.  10;  2  Bla.  Com.  206,  207. 

:::;  513 


§    671  TITLE   BY   DESCENT.  [PART   III. 

courts,  while  in  some  of  the  States  it  is  by  statute  made  the 
rule  of  computation.1 

§  670.  Ancestral  property.  — This  term,  when  used  in 
the  law  of  descent,  signifies  the  property  which  the  intestate 
himself  acquires  by  descent.2  Where  the  property  is  ac- 
quired by  purchase  by  the  intestate,  since  the  common-law 
preference  of  males  over  females  does  not  prevail  here,  all 
the  collateral  kindred  of  equal  degree  would  inherit  alike y 
whether  they  are  paternal  or  maternal  relatives.  But  ac- 
cording to  the  common  law,  no  one  could  be  heir  to  ances- 
tral property,  unless  he  is  likewise  the  heir  of  the  last 
purchaser.3  But  in  the  United  States  it  would  seem  that 
no  such  distinction  is  made  between  property  acquired  by 
purchase  and  by  descent,  unless  expressly  established  by 
statute.  In  Indiana,  Maryland,  Ohio,  Pennsylvania,  Rhode 
Island  and  New  York,  statutes  provide  that  ancestral  prop- 
erty descends  to  kindred  of  the  blood  of  the  ancestral  pur- 
chaser in  preference  to  other  kindred,  but  the  latter  inherit^ 
if  there  be  no  heirs  of  the  ancestral  purchaser's  blood.4 

§  671.  Kindred    of    the    whole    and    half  hlood. — At 

common  law  the  inheritance  could  only  vest  in  kindred  of 
the  whole  blood,  i.e.,  persons  descended  not  merely  from  a 
common  ancestor,  but  from  a  common  couple  of  ancestors. 
Kindred  of  the  half  blood  could  not  inherit,  even  where  there 


1  3  Washb.  on  Real  Prop.  10;  McDowell  v.  Adams,  45  Pa.  St.  430;  Walk- 
er's Am.  Law,  358  ;  Doe  v.  Gilbert,  2  Miss.  32.  Regulated  by  statute  in  Maine, 
Massacbusetts,  Minnesota,  Michigan,  Mississippi,  Oregon,  Wisconsin.  3 
Washb.  on  Real  Prop.  21,  note. 

2  Walker's  Am.  Law,  354. 

s  2  Bla.  Com.  220;  3  Washb.  on  Real  Prop.  11 ;  Williams  on  Real  Prop. 
100,  101. 

4  3  Washb.  on  Real  Prop.  21,  note ;  Case  v.  Wildridge,  4  Ind.  51 ;  Ramsey  v. 
Ramsey,  7  Ind.  607 ;  Kelsey  v.  Hardy,  20  N.  H.  479 ;  Fowler  v.  Trewhitt,  10 
Ala.  622.  See  Kelly  v.  McGuire,  15  Ark.  555 ;  Duncan  v.  Lafferty,  6  J.  J. 
Marsh.  46 ;  Childress  v.  Cutter,  16  Mo.  24 ;  Hyatt  v.  Pugsley,  33  Barb.  373. 

514 


CH.  XXI.]  TITLE    BY    DESCENT.  §    672 

were  no  kindred  of  the  whole  blood.1  Probably  in  no  State 
of  the  American  Union  are  kindred  of  the  half  blood  abso- 
lutely excluded  from  inheriting.2  In  some  States  no  dis- 
tinction is  made  between  whole  and  half  blood,  while  in 
others  the  half  blood  are  postponed  in  the  inheritance  to  the 
whole  blood  of  equal  degree  of  relationship.3  In  a  still 
larger  number  of  the  States  it  is  provided  by  statute  that 
kindred  of  the  half  blood  shall  not  inherit  the  ancestral 
property  of  the  intestate,  unless  they  are  of  the  blood  of 
the  ancestral  purchaser.4 

§  672.  Advancement — Hotchpot.  —  In  effecting  a  dis- 
tribution of  the  estate  among  the  heirs,  if  any  one  of  the 
heirs  received  a  part  of  the  ancestor's  estate  during  his  life- 
time, it  is  required  that  the  same  be  considered  as  a  part  of 

»  2  Bla.  Com.  227.  The  only  exception  was  where  the  deceased  was  not 
actually  seised,  and  the  person  last  seised  was  the  common  ancestor  of  the 
kindred  of  half  blood,  such  kindred  could  inherit,  not  as  heir  to  the  deceased, 
but  as  heir  to  the  common  ancestor,  in  conformity  with  the  common-law  rule 
that  only  the  heirs  of  the  person  last  seised  could  inherit.    2  Bla.  Com.  227. 

»  3  Washb.  on  Real  Prop.  15;  Chase's  Bla.  393,  n.  8. 

5  They  inherit  equally  in  Maryland,  Indiana,  North  Carolina  and  Tennes- 
see. Lowe  v.  Maccubben,  1  Harr.  &  J.  550;  Osborne  v.  Widenhouse,  3 
Jones  Eq.  238 ;  Doe  v.  Turner,  2  Hawks,  435 ;  Doe  v.  Sheppard,  3  Murph. 
333 ;  Nichol  v.  Dupree,  7  Yerg.  415 ;  Arnold  v.  Den,  2  South.  862  ;  Moore  v. 
Abernathy,  7  Blackf.  442.  Half  blood  postponed  to  whole  blood  by  statute  in 
England,  Connecticut,  Delaware,  Pennsylvania,  South  Carolina,  New  Jersey, 
Mississippi  and  Texas.  Clark  v.  Pickering,  16  N.  H.  289;  Hulme  v.  Mont- 
gomery, 31  Miss.  105 ;  Clay  v.  Cousins,  1  B.  Mon.  75 ;  Fatheree  v.  Fatheree,  1 
Miss.  311 ;  Hitchcock  v.  Smith,  3  Stew.  &  P.  29 ;  Chase  Bla.  393,  n.  8 ;  3  Washb. 
on  Real  Prop.  21,  note.  In  Missouri  and  Kentucky  the  half  bloo  d  take  only 
one-half  of  what  descends  to  the  whole  blood.  Talbot  v.  Talbot,  17  B.  Mon. 
1 ;  Petty  v.  Malier,  15  B.  Mon.  591. 

*  The  rule  prevails  in  Alabama,  Arkansas,  California,  Connecticut,  Dela- 
ware, Georgia,  Illinois,  Indiana,  Maine,  Massachusetts,  Maryland,  Michigan, 
Minnesota,  New  Jersey,  New  York,  Ohio,  Oregon,  Tennessee,  Wisconsin.  3 
Washb.  on  Real  Prop.  21,  note;  4  Kent's  Com.  406;  Danner  v.  Shissler,  31 
Pa.  St.  289;  Sheffield  v.  Lovering,  12  Mass.  490;  Armington  v.Armington,  28 
Ind.  74 ;  Pennington  v.  Ogden,  1  N.  J.  L.  192.  In  New  Jersey  they  inherit 
of  each  other  only  the  property  derived  from  a  common  ancestor.  Den  v. 
Urison,  2  N.  J.  L.  212 ;  Den  ».  Jones,  8  N.  J.  L.  340. 

515 


§  672  TITLE  BY  DESCENT.  [PART  III. 

the  estate  of  the  deceased,  and  be  deducted  from  the  share 
such  heir  was  entitled  to  under  the  law  of  descent.  In  de- 
termining the  share  of  each,  the  property  so  advanced  is 
added  to  the  rest  of  the  estate,  and  the  division  is  then 
made,  by  dividing  the  aggregate  amount  equally  among  the 
heirs,  the  amount  advanced  being  treated  as  a  part  of  the 
share  of  the  heir,  to  whom  it  was  given.  In  the  curious 
etymology  of  the  common  law  this  doctrine  was  called 
"hotchpot."1  The  doctrine  is  now  more  commonly  under- 
stood under  the  term  advancement.  In  order,  however, 
that  the  doctrine  may  apply,  it  must  be  established  by  com- 
petent evidence,  and  in  some  of  the  States  certain  modes  of 
proof  are  prescribed  and  rendered  necessary  by  statute,  that 
the  gift  inter  vivos  was  intended  to  be  treated  as  an  advance- 
ment. A  simple  gift,  without  proof  of  such  an  intention, 
will  be  considered  an  'absolute  gift,  and  cannot  affect  the 
donee's  right  to  an  equal  share  in  the  deceased's  estate. 
But  in  no  case  can  the  donee  be  compelled  to  bring  in  his 
advancement  for  a  re-distribution.  If,  therefore,  his  ad- 
vancement is  of  greater  value  than  his  share  in  the  estate 
would  be,  he  may  refuse  to  bring  it  in,  and  thereby  renounce 
his  claim  as  an  heir.2 


1  "  It  seemeth  that  this  word  hotch-pot  is  in  English  a  pudding;  for  in  a 
pudding  is  not  commonly  put  one  thing  alone,  but  one  thing  with  other  things 
together."  Littleton,  quoted  by  Blackstone.  2  Bla.  Com.  190.  But  in  the 
early  common  law  the  doctrine  was  made  to  apply  to  only  those  estates  which 
were  given  to  a  daughter  in  frank-marriage  —  a  species  of  estates  tail,  settled 
upon  a  woman  at  her  marriage.  Property  so  donated  raised  the  conclusive 
presumption  that  it  was  intended  as  an  advancement.  2  Bla.  Com.  191.  The 
doctrine  is  now  applied  to  all  kinds  of  advancements  where  it  has  not  been 
abolished  by  statute. 

a  3  Washb.  on  Real  Prop.  20;  4  Kent's  Com.  418,  419;  Clark  v.  Fox,  9 
Dana,  193.  The  doctrine  is  expressly  recognized  and  regulated  by  statute  in 
Maine,  Massachusetts,  Vermont,  California,  Oregon,  "Wisconsin,  Michigan, 
Minnesota,  New  Hampshire,  New  York,  Alabama,  Arkansas,  Dakota,  Ohio, 
Khode  Island,  Connecticut,  New  Jersey,  Pennsylvania,  Virginia,  North  Caro- 
lina, Georgia,  Mississippi,  Texas,  Fhrida,  Illinois,  Kansas,  Kentucky,  Mis- 
souri, Indiana,  Tennessee  and  Mary]  -.nd.    3  Washb.  on  Heal  Prop.  40,  note. 

51(5 


•     CH.  XIX.]  TITLE    BY    DESCENT.  §    674 

§  673.  Posthumous  children.  —  The  common  law  did 
not  treat  children  en  ventre  sa  mere  as  persons  in  esse  for 
the  purpose  of  holding  or  acquiring  property.  This  capac- 
ity only  attached  upon  their  birth  alive.  Consequently,  by 
the  old  common  law,  children  born  after  the  death  of  the 
ancestor  were  precluded  from  participating  with  the  others 
in  the  distribution  of  the  intestate's  estate.  But  this  harsh 
rule  has  now  been  generally  changed  by  statute,  and  posthu- 
mous children  in  the  United  States  inherit  equally  with  those 
born  during  the  life  of  the  ancestor.1 

§  674.  Illegitimate  children.  — It  is  also  a  common-law 
rule  that  illegitimate  children  have  no  inheritable  blood,  and 
can  neither  inherit  nor  have  heirs,  except  lineal  descendants 
in  the  descending  series.  Bastards,  therefore,  could  have 
neither  collateral  nor  lineal  heirs  in  the  ascending;  line.'2  But 
by  statute,  in  a  large  number  of  the  American  States,  an 
illegitimate  child  is  now  permitted  to  inherit  from  the  mother 
and  its  maternal  ancestors,  and  the  mother,  and  in  some 
States,  its  brothers  and  sisters,  from  the  child.  But  it 
would  seem  likely  that  the  illegitimate  child  could  only  in- 
herit from  the  mother,  where  there  are  no  legitimate  chil- 
dren.3     But  a  number  of  the  States  have  adopted  the  rule 

1  4  Kent's  Com  .412;  Harper  v.  Archer,  4  Smed.  &M.  99;  Den  v.  Flora,  8 
Ired.  374;  Morrow  'v.  Scott,  7  Ga.  535;  Bishop  v.  Hampton,  11  Ala.  254; 
Buchanan's  Estate,  8  Cal.  507 ;  Cox  v.  Matthews,  17  Ind.  367 ;  Haskins  v. 
Spiller,  1  Dana,  170;  Harper  v.  Archer,  12  Miss.  99.  Statutes  modifying  the 
common-law  rule  exist  inmost  of  the  States  of  the  Union.  3  Washb.  on  Real 
Prop.  44,  note.  In  Alabama,  Arkansas,  Missouri,  and  Texas  the  doctrine 
applies  only  to  the  posthumous  children  of  the  intestate.  Ala.  Code  (1867), 
sect.  1893;  Ark.  Dig.  Stat.  (1858),  ch.  56,  sect.  2;  Mo.  Gen.  Stat.  (1866),  p. 
618,  ch.  129,  sect.  2. 

*  2  Bla.  Com.  247,  248,  249 ;  2  Kent's  Com.  212 ;  Cooley  v.  Dewey,  4  Pick. 
93 ;  Barwick  v.  Miller,  4  Desau.  434 ;  Stover  v.  Boswell,  3  Dana,  233 ;  Bent  v. 
St.  Vrain,  30  Mo.  268. 

3  See  Coe  v.  Bates,  6  Blackf.  533 ;  Ellis  v.  Hatfield,  20  Ind.  101  ;  Stover  v. 
Boswell,  3  Dana,  233.  Statutes  to  this  general  eflectareto  be  found  in  Massa- 
chusetts, Indiana,  Mississippi,  Texas,  Vermont,  Alabama,  New  Hampshire, 

517 


§    G75  TITLE    BY    DESCENT.  [PART    III       * 

of  the  civil  law,  that  the  subsequent  marriage  of  the  parents 
of  a  child  born  out  of  wedlock  legitimizes  such  offspring 
for  all  purposes,  and  enables  it  to  inherit  equally  with  the 
children  born  after  the  marriage.  However,  the  statutes 
generally  require  the  putative  father  to  acknowledge  such  a 
child,  in  order  that  the  subsequent  marriage  may  produce 
legitimation.1 

§  675.  Alienage,  a  bar  to  inheritance.  — Since  an  alien 
at  common  Law  was  not  permitted  to  hold  lands,  and  such 
lands  which  he  did  acquire  became  escheated  to  the  State 
after  "  office  found,"  it  was  held  to  be  impossible  for  him 
to  inherit  from  another,  as  the  law  would  not  cast  upon  him 
the  title  to  lands  which  he  could  not  hold.2  Nor  did  he  have 
sufficient  inheritable  blood  to  transmit  the  inheritance  to 
collateral  heirs,  who  were  citizens.     Thus,  brothers  could 


Illinois,  Rhode  Island,  Pennsylvania,  Virginia,  Kentucky,  Florida,  Arkansas, 
Iowa,  Missouri,  New  York,  Maryland,  Kansas,  Ohio  and  Georgia.  Williams 
on  Real  Prop.  126,  n  2 ;  3  Washb.  on  Real  Prop.  41,  note  ;  Brown  v.  Dye,  2  Root, 
280.  In  New  Hampshire,  by  express  statutory  provision,  illegitimate  children 
inherit  equally  with  legitimate  children  ;  while  in  New  York  they  are  expressly 
precluded  from  inheriting,  if  there  be  legitimate  is-ue.  Gen.  Stat.  N.  H. 
(1867),  ch.  184,  sects.  4,  5;  N.  Y.  Laws  of  1855,  ch.  547  ;  1  R.  S.  754,  sect  19. 
Under  the  Mississippi  statute  they  inherit  equally.  Alexander  v.  Alexander, 
31  Ala.  241.  But  wherever  the  statute  does  not  expressly,  or  by  necessary  im- 
plication, remove  the  common-law  incapacity,  the  common  law  still  prevail?. 
A  statute  making  an  illegitimate  child  heir  to  its  mother  does  not  enable  it  to 
inherit  from  its  brothers,  or  transmit  its  own  estate  by  descent  to  its  mother. 
Bent's  Adm'r  v.  St.  Vrain,  30  Mo.  26S ;  Stephenson's  Heirs  v.  Sullivan,  5 
Wheat.  260 ;  Little  et  al.  v.  Lake,  8  Ohio,  290 :  Remington  v.  Lewis,  8  B.  Mon. 
606. 

1  Such  statutes  have  been  enacted  in  Massachusetts,  Vermont,  Maryland, 
Virginia,  Kentucky,  Mississippi,  Texas,  Oregon,  Iowa,  Indiana,  Arkansas, 
Ohio,  Missouri,  Illinois,  New  Hampshire,  Nebraska.  Jackson  v.  Moore,  8 
Dana,  170;  3  Washb.  on  Real  Prop.  41,  note.  In  Nebraska  and  California  the 
acknowledgment  of  the  child  by  the  father  must  be  in  writing.  Rev.  Stat.  Neb. 
(1866),  pp.  62;  Pina  «;.  Pick,  31  Cal.  359.  And  in  Missouri  the  statute  pro- 
vided that  the  offspring  of  marriages,  which  have  been  declared  null  and  void, 
shall  be  legitimate.     Gen.  Stat.  Mo.  (1865).  p.  519,  ch.  129,  sect.  11. 

2  1  Bla.  Com.  372 ;  2  Id.  249. 

518 


CH.  XIX.]  TITLE    BY    DESCENT.  §    675 

not  inherit  from  each  other  if  their  parents  were  aliens.1 
But  now,  by  statute,  in  England  and  in  this  country  gener- 
ally, such  persons  may  inherit  from  each  other,  although 
they  claim  relationship  through  some  person  who  is  an  alien.2 
And  where  an  alien  is  specially  authorized  by  statute  to 
hold  and  take  lands  by  descent,  it  seems  that  only  those 
relations  can  inherit  from  him,  who  are  citizens.  At  least, 
if  there  are  such  heirs,  and  others  who  are  aliens,  the  former 
will  inherit  to  the  exclusion  of  the  latter.3  But  in  a  number 
of  the  States  statutes  have  been  passed  removing  altogether 
the  disability  of  alienage.4 

1  2  Bla.  Com.  250. 

2  2  Bla.  Com.  251 ;  Chase  Bla.  Com.  395,  n.  9.  Such  is  the  statutory  rule 
in  Virginia,  Kentucky,  Florida,  Arkansas,  Texas,  New  York,  Missouri  and 
Massachusetts.    3  Washb.  on  Real  Prop.  44,  note.     See  next  note. 

3  Parish  v.  Ward,  28  Barb.  328 ;  McGregor  v.  Comstock,  3  N.  T.  408.  In 
New  York  it  is  provided  by  statute  that  the  alienage  of  an  ancestor  does  not 
prevent  a  person  from  inheriting  from  another,  of  whom  the  alien  is  a  com- 
mon ancestor.  1  Rev.  Stat.  (N.  Y.)  754,  sect.  22.  But  it  has  been  held  by  the 
New  York  courts  that  this  statute  does  not  enable  one  to  take  by  descent 
through  the  alien,  if  the  latter  would  have  been  heir  but  for  the  fact  that  he 
was  not  a  citizen.  People  v.  Irvin,  21  Wend.  128 ;  McLean  v.  Swanton,  13  N. 
Y.  535.    See  Jackson  v.  Jackson,  6  Johns.  214;  Orser  v.  Hoag,  3  Hill,  79. 

4  "Williams  on  Real  Prop  65,  n.  1 ;  Chase  Bla.  Com.  119,  n.  2. 

519 


CHAPTER    XX. 

TITLE   BY   ORIGINAL   ACQUISITION. 

Section      I.   Title  by  occupancy. 
II.    Title  by  accretion. 

III.  Title  by  adverse  possession. 

IV.  Statute  of  Limitations. 
V.  Estoppel. 

VI.  Abandonment. 

SECTION  I. 

TITLE  BY  OCCUPANCY. 

Section  681.  Definition. 

682.  Condition  of  public  lands  in  the  United  States. 

683.  Estates  per  auter  vie. 

§  681.  Definition.  — Occupancy,  in  the  technical  signifi- 
cation of  the  term,  is  the  act  of  taking  possession  of  land 
which  before  was  the  common  property  of  the  people  or 
community.1  Under  the  theory  that  in  the  prehistoric  age 
lands  were  originally  common  property,  this  must  have  been 
the  original  mode  of  acquiring  therein  a  right  of  private 
property. 

§  682.   Condition  of  public  lands  in  the  United  States. — 

According  to  the  common  law  of  England  and  of  this 
country,  there  is  no  common  property  in  lands.  Here 
lands  which  are  not  the  property  of  private  persons  are  held 
to  be  the  property  of  the  State  or  the  United  States,  accord- 
ing to  the  circumstances.  England  claimed  by  the  right  of 
discovery  the  title  to  the  soil,  denying  any  claim  thereto  of 

1  2  Bla.  Com.  257. 

520 


CH.  XX.]  TITLE    BY    OCCUPANCY.  §    682 

the  aborigines,  on  the  ground  that  their  nomadic  life  pre- 
vented them  from  acquiring  more  than  a  temporary  right 
of  occupation,  something  in  the  nature  of  revocable  or  de- 
feasible licenses  or  tenancies  at  will.1  This  right  was  in 
turn  granted  by  letters  patent  to  the  various  colonies,  which 
were  established  under  the  British  government,  and  the  un- 
appropriated lands  within  their  boundaries  became  the  prop- 
erty of  the  respective  colonial  governments.2  But  all  lands 
lying  outside  of  the  colonies  remained  the  property  of  Great 
Britain,  including  both  the  lands  acquired  under  the  claim 
of  discovery  and  those  purchased  from  other  civilized  na- 
tions.3 And,  upon  the  successful  issue  of  the  American 
revolution,  these  lands  became  the  property  of  the  United 
States.  Subsequently  a  number  of  the  States,  which  claimed 
title  to  extensive  tracts  of  lands  in  the  then  unexplored 
West,  under  their  charters  from  the  crown,  ceded  them  to 
the  United  States  for  the  benefit  of  the  Union.  There  have 
also  been  purchases  by  the  United  States  from  other  nations, 
notably  Louisiana,  Florida,  and  the  large  tracts  of  territory 
ceded  by  Mexico,  to  the  unappropriated  lands  of  which  the 
same  theory  of  property  in  the  government  has  been  ap- 
plied.4 There  are,  therefore,  in  this  country  no  lands  with- 
out an  owner;  and  the  so-called  public  lands  being  the 
property  of  the  States  or  the  United  States,  the  legal  title 
to  them  can  only  be  acquired  by  grant  from  the  governments 

1  3  Washb.  on  Heal  Prop.  164  ;  1  Story  on  Const.  3  ;  Johnson  v.  Mcintosh, 
8  Wheat.  643 ;  Martin  v.  Waddell,  16  Pet.  367. 

2  1  Curtis  on  Const.  425 ;  Jackson  v.  Hart,  12  Johns.  81 ;  Worcester  v. 
Georgia,  6  Pet.  544 ;  Commonwealth  v.  Roxbury,  9  Gray,  478. 

s  Johnson  v.  Mcintosh,  8  Wheat.  543 ;  Worcester  v.  Georgia,  6  Pet.  548. 

*  3  Washb.  on  Real  Prop.  165,  166;  1  Story  on  Const.  215;  1  Kent's  Com. 
259 ;  Terrett  v.  Taylor,  9  Cranch,  50. 

5  Under  the  laws  of  Congress,  however,  the  actual  settler  upon  public 
lands  acquires  by  such  act  of  occupation  an  equitable  title  in  the  nature  of  a 
right  to  the  legal  title,  upon  payment  of  the  minimum  price  fixed  by  law. 
This  right  is  called  pre-emption,  and  further  reference  will  be  made  to  it 
in  treating  of  title  by  public  grant  or  patent     See  post,  sect.  747. 

521 


§    683  TITLE    BY    OCCUPANCY.  [PART    III. 

§  083.  Estates  per  auter  vie. — It  will  be  remembered, 
in  treating  of  these  estates,  it  was  stated  that  upon  the  death 
of  the  tenant  per  auter  vie,  during  the  life  of  the  cestui  que 
vie,  the  common  law  gave  the  estate  to  the  first  occupant  in 
the  case  of  an  ordinary  estate  per  auter  vie,  and  he  was 
called  the  general  occupant.  But  where  the  estate  was  lim- 
ited to  the  tenant  and  his  heirs  during  the  life  of  another, 
his  heirs  took  the  estate  by  so-called  special  occupancy  to 
the  exclusion  of  the  general  occupant.1  But  this  common- 
law  doctrine  has  now  been  abolished  by  statute  in  England, 
and  in  most,  if  not  all,  of  the  United  States.  The  estate  is 
either  given  the  quality  of  an  estate  of  inheritance,  and  de- 
scends to  the  heirs  of  the  tenant  per  auter  vie,  or  is  made  a 
chattel  real,  and  vests  in  his  personal  representatives.2 

1  See  ante,  sect.  61 ;  2  Bla.  Com.  258,  259,  260. 

2  3  Washb.  on  Keal  Prop.  50,  51 ;  Chase  Bla.  Com.  414,  n.  1.  See  ante, 
•sect.  61. 

522 


SECTION  n. 

TITLE  BY  ACCRETION. 

Section  685.  Definition. 

686.  Alluvion. 

687.  Filum  Aquae. 

§  685.  Definition.  —  It  is  a  rule  in  the  law  of  real  prop- 
erty that  whenever  other  species  of  property  become  at- 
tached to  the  land  already  in  one's  possession,  it  becomes  a 
part  of  the  land  and  the  property  of  its  owner,  and  the  title 
thereto  is  generally  acquired  by  the  very  act  of  attachment. 
Quidquid plantatur  solo,  solo  cedit.  It  has  been  shown  that 
the  rule  applies  to  houses  and  other  structures  erected  upon 
the  land  by  strangers  Avithout  the  consent  of  the  owner  of 
the  land.1  But  at  present  we  are  only  concerned  with  the 
doctrine  so  far  as  it  applies  to  the  additions  of  foreign  soil 
through  the  co-operation  of  natural  causes,  which  are  known 
under  the  term  alluvion.  The  mode  of  acquiring  a  right  of 
property  in  such  cases  is  called  title  by  accretion.  It  is  more 
properly  an  incident  to  real  property  than  a  mode  of  acqui- 
sition of  lands.  But  inasmuch  as  new  property  is  thus 
acquired,  the  means  of  manner  of  acquisition  may  fitly  be 
called  a  title.2 

§  686.  Alluvion. — This  is  the  soil  and  various  other 
things,  such  as  marine  and  water  plants,  sea-weeds,  etc., 
which  are  washed  up  on  the  shore  of  a  stream  by  the  action 
of  the  water.  It  is  a  notable  and  common  fact  that  the 
current  of  a  stream  is  constantly  changing  by  the  washing 

1  See  ante,  sect.  2. 

*  3  Washb.  on  Real  Prop.  55,  59 ;  Banks  v.  Ogden,  2  Wall.  69 ;  Saulet  v. 
Shepherd,  4  Wall.  505;  Municipality  v.  Orleans  Cotton  Press,  18  La.  122. 

523 


§    687  TITLE    BY    ACCRETION.  [PAET    III. 

away  of  the  soil  on  one  side  of  the  stream  and  the  transpor- 
tation of  the  particles  to  the  other  side,  or  by  their  deposit 
on  the  same  side  below.  All  such  accretions  become  a  part 
of  the  land  upon  which  they  are  cast,  and  the  property  of 
the  owner  of  the  soil.1  But  the  title  to  such  accretions  does 
not  rest  upon  the  mere  fact  of  attachment  to  the  soil,  al- 
though such  attachment  is  a  necessary  element.  It  rests 
rather  upon  the  fact  that  the  former  owner  is  unable  to 
identify  his  property.  Alluvion  is  the  gradual  formation 
of  soil  by  the  deposit  of  particles  and  atoms  of  soil,  which, 
from  the  very  nature  of  the  case,  the  former  owner  cannot 
identify  in  the  new  shape  which  they  have  assumed.  But 
if  by  some  sudden  avulsion,  a  distinct  and  tangible  part  of 
the  soil  of  one  man's  land  is  detached  and  deposited  upon 
another's  premises,  the  latter  acquires  no  title  thereto  by 
the  mere  act  of  deposit.  The  former  owner  can  still  iden- 
tify it,  and  prove  his  property.  But  if  he  should  permit 
such  soil  to  remain  upon  the  land  sufficiently  long  to  become 
permanently  attached,  his  right  of  property  will  be  lost, 
because  its  removal  after  such  delay  would  probably  injure 
the  land.2 

§  687.  Filum  Aquae. — Where  two  tracts  of  land  are 
divided  by  a  navigable  stream,  the  general  rule  is  that  the 
boundary  line  is  the  low  water  mark  on  the  adjoining  shore, 
and  the  soil  or  bed  of  the  stream  is  the  property  of  the  State. a 
But  if  the  stream  is  not  navigable,  the  boundary  line  is  the 

i  3  Washb.  on  Real  Prop.  55;  Emans  v.  Turnbull,  2  Johns.  322;  An- 
thony v.  Gifford,  2  Allen,  550;  St.  Louis  Public  Schools  v.  Risley,  40  Mo. 
356 ;  New  Orleans  v.  United  States,  10  Pet.  662 ;  Jones  v.  Soulard,  24  Hqw. 
41 ;  Krant  v.  Crawford,  18  Iowa,  549 ;  Barrett  v.  New  Orleans,  13  La.  An.  105; 
Ingraham  v.  Wilkinson,  4  Pick.  273 ;  Giraud  v.  Hughes,  1  Gill  &  J.  249. 

3  3  Washb.  on  Real  Prop.  59  :  Ang.  Wat.  Cour.,  sect.  60 ;  Inst  L.  II.  Tit.  1% 
sect.  21;  Hawkins  v.  Barney,  5  Pet.  467;  Woodbury  v.  Short,  17  Yt  387; 
Dikes  v.  Miller,  24  Tex.  424 ;  Trustees,  etc.  v.  Dickinson,  9  Cush.  544 ;  Hal- 
sey  v.  McCormick,  18  N.  Y.  147. 

3  See  post,  sect.  835,  for  definition  of  a  navigable  stream. 

524 


•CH.  XX.]  TITLE    BY   ACCRETION.  §    687 

centre  of  the  current  of  the  stream,  commonly  called  the 
filum  aquce,  and  the  owners  of  the  shore  have  a  right  of 
property  in  the  bed  of  the  stream  up  to  this  filum  aquce.1 
If,  therefore,  an  island  rises  in  the  current  of  a  non-navi- 
gable stream,  under  the  doctrine  of  accretion,  it  would  be- 
come the  property  of  him  on  whose  soil  it  is  formed.  If 
the  island  is  formed  in  the  middle  of  the  stream,  the  pro- 
prietors of  the  opposite  shores  would  acquire  a  title  in 
severalty  to  that  part  of  the  island  which  lies  on  their  re- 
spective sides  of  the  filum  aquae.'1  But  if  the  stream  is 
navigable,  since  the  right  of  property  in  the  bed  of  the 
stream  is  vested  in  the  State,  an  island  forming  in  the  current 
of  the  stream  belongs  to  the  State,  and  the  owners  of  the 
shore  are  only  entitled  to  whatever  alluvion  is  deposited  on 
their  shore  above  low  water  mark.3  So  also  if,  by  some 
sudden  change  in  the  current  of  the  navigable  river,  what  was 
once  the  bed  is  left  uncovered,  the  property  in  the  soil  remains 
in  the  State.  The  owner  of  the  shore  does  not  acquire  the 
title  thereto,  as  he  does  to  gradual  and  ordinary  accretions, 
resulting  from  usual  and  natural  changes  in  the  current.4 

1  3  Washb.  on  Real  Prop.  55,  56.  For  a  more  extended  discussion  of  this 
entire  subject,  see  post,  sects.  833-835. 

2  3  Kent's  Com.  428;  3  Washb.  on  Real  Prop.  56,  57,  58;  Walk.  Am.  Law, 
329;  Chase's  Bla.  Com.  416  n;  Ingraham  v.  Wilkinson,  4  Pick.  268;  Deer- 
field  v.  Arms,  17  Pick.  41 ;  Trustees,  etc.,  v.  Dickinson,  9  Cusb.  544;  Adams 
v.  Frothingham,  3  Mass.  352 ;  Woodbury  v.  Short,  17  Vt.  387 ;  Halsey  v. 
McCormick,  18  N.  Y.  147 ;  Primm  v.  Walker,  38  Mo.  99 ;  King  v.  Yarbor- 
ough,  3  B.  &  C.  91. 

3  3  Washb.  on  Real  Prop.  58;  Chase's  Bla.  Com.  416  n;  Attorney-General 
v.  Chambers,  4  De  G.  M.  &  G.  206-218;  Scratton  v.  Brown,  4  B.  &  C.  495; 
King  v.  Yarborough,  1  Gow.  &  C.  178;  s.  c,  3  B.  &  C.  91. 

*  Emans  v.  Turnbull,  2  Johns.  322 ;  Halsey  v.  McCormick,  18  N.  Y.  147. 
See  Trustees,  etc.,  v.  Dickinson,  9  Cush.  544. 

525 


section  in. 

TITLE   BY   ADVERSE   POSSESSION. 

Section  692.  Effect  of  naked  possession. 

693.  Seisin  and  disseisin. 

694.  Disseisin  and  dispossession  distinguished. 

695.  Actual  and  constructive  possession. 

696.  Actual  or  constructive  possession  —  Continued. 

697.  What  acts  constitute  actual  possession  —  Visible  or  notorious. 

698.  Possession  must  be  distinct  and  exclusive. 

699.  Possession  —  Hostile  and  adverse. 

700.  Adverse  possession,  when  entry  was  lawful. 

701.  Disseisor's  power  to  alien. 

702.  Betterments. 

703.  Title  by  adverse  possession  —  How  defeated. 

704.  Title  by  adverse  possession  —  How  made  absolute. 

§  692.  Effect  of  naked  possession. — It  is  an  undis- 
puted rule  of  law  that  naked  possession,  i.e.,  possession 
without  even  a  claim  of  title,  vests  a  sufficient  right  of  prop- 
erty in  the  person  whohassuch  possession, as  to  permit  him 
to  hold  the  land  against  all  the  world  except  the  true  owner.1 
But  he  does  not  in  strict  technical  language,  by  the  mere 
fact  of  possession,  acquire  a  title  to  the  land,  and  certainly 
not  against  the  true  owner.  Such  possession  may  be  as 
licensee,  bailee  or  tenant  of  the  real  owner,  or  in  some  other 
way  subordinate  to  the  latter;  and  under  such  circumstances 
his  possession  is  the  possession  of  the  owner.  In  order 
that  his  possession  may  vest  in  him  a  title  to  the  land,  it 
must  be  adverse  to,  and  independent  of,  the  real  owner. 
What  is  adverse  possession  will  appear  in  the  following 
paragraphs. 

1  3  Washb.  on  Real  Prop.  114 ;  2  Sharsw.  Bla.  Com.  196  n. 
526 


CH.  XX.]  TITLE    BY    ADVERSE    POSSESSION.  §    69$ 

§  693.  Seisin  and  disseisin.  —  Seisin,  as  has  been  ex- 
plained in  a  preceding  chapter,1  is  that  possession  which  ac- 
companies, and  which  is  an  incident  of,  freehold  estates. 
Seisin  is  of  two  kinds,  seisin  in  fact,  which  is  equivalent  to- 
actual  possession,  and  seisin  inlaw  or  deed,  being  that  seisin 
or  right  to  seisin,  which  one  acquires  by  the  delivery  and 
acceptance  of  a  deed,  or  which  is  retained  by  the  owner, 
when  he  parts  with  his  possession  to  the  tenant  of  a  lease- 
hold or  other  subordinate  estate,  or  in  any  other  case  where- 
he  has  not  the  actual  possession.2  In  this  connection  we 
are  not  concerned  with  the  distinctions  between  freehold 
and  leasehold  estates  in  respect  to  the  appropriate  use  of  the 
term  seisin.  On  the  contrary,  in  respect  to  the  matter 
under  consideration,  the  terms  seisin  said  possession  may  be 
treated  as  synonymous,  meaning  that  possession  which  ac- 
companies, and  is  held  under,  a  claim  of  title.3  There 
cannot,  however,  be  more  than  one  seisin,  and  where,  there- 
fore, two  persons  are  in  possession,  he  has  the  seisin  who 
can  show  a  good  title.4  When  one  is  in  possession  of  the 
land,  and  his  possession  is  subordinate  to  the  claims  of  the 
real  owner,  although  the  latter  has  not  the  seisin  in  fact, 
he  still  has  the  seisin  in  law,  for  the  possession  of  the 
former  is  subordinate  and  supports  the  seisin  in  law.  The 
tenant  is  for  that  purpose  a  quasi-ba\\ee  of  the  owner.  But, 
if  the  one  in  possession  holds  the  land  in  opposition  to  the 
claims  of  the  owner,  and  under  the  assertion  of  a  superior 
title,  then  the  real  owner  is  deprived  of  his  seisin  ;  for  the 
seisin  in  law  can  only  exist,  apart  from  the  seisin  in  fact, 
when  the  actual  possession  is  held  by  another  subject  to  the 

1  See  ante,  sect.  24. 

8  Co.  Lit.  153 ;  2  Prest.  Abst.  282.     See  ante,  sect.  25. 

*  3  Washb.  on  Real  Prop.  117;  Slater  v.  Rawson,  6  Mete.  439;  Smith  t>. 
Burtis,  6  Johns.  216. 

*  2  Prest.  Abst.  286,  290,  4  Kent's  Com.  482 ;  Barr  v.  Gratz,  4  Wheat.  213  ; 
Codman  v.  Winslow,  10  Mass.  146;  Brimmer  v.  Long  Wharf,  5  Pick.  131 ; 
Stevens  v.  Hollister,  18  Vt.  294 ;  Smith  v.  Burtis,  6  Johns.  216 ;  Whittingtoit 
v.  Wright,  9  Ga.  23. 

527 


§    693  TITLE    BY    ADVERSE    POSSESSION.  [PAKE    III. 

superior  claims  of  the  owner.  The  real  owner  is  then  said 
to  be  disseised  ;  the  act  which  deprives  him  of  the  seisin  is 
a  disseisin,  and  the  actor  is  a  disseisor.  Disseisin  vests  in 
the  disseisor  a  title  to  the  land,  and  leaves  in  the  disseisee 
only  a  right  of  entry,  which  is  practically  but  a  chose  in 
action.  Disseisin  is  synonymous  with  adverse  possession.1 
So  completely  does  disseisin  divest  the  owner  of  his  estate, 
that  at  common  law  he  had  nothing  which  he  could  convey  ; 
-nor  could  he  maintain  an  action  for  trespass  upon  the  land, 
or  for  other  injuries  thereto.  The  disseisor  could  alone 
maintain  such  actions.  Says  Mr.  Preston:  "  Disseisin  is 
the  privation  of  seisin.  It  takes  the  seisin  or  estate  from 
one  man  and  places  it  in  another.  It  is  an  ouster  of  the 
rightful  owner  of  his  seisin.  It  is  the  commencement  of  a 
new  title,  producing  that  change  by  which  the  estate  is 
taken  from  the  rightful  owner  and  is  placed  in  the  wrong- 
doer. Immediately  after  a  disseisin,  the  person,  by  whom 
the  disseisin  is  committed,,  has  the  seisin  or  estate,  and  the 
person  on  whom  the  injury  is  committed  has  merely  the 
right  or  title  of  entry."  Again  :  "  As  soon  as  a  disseisin 
is  committed,  the  title  consists  of  two  divisions;  first,  the 
title  under  the  estate  or  seisin,  and,  secondly ,  the  title  under 
the  former  ownership. ' ' 2  And  since  the  disseisor  claims  the 
land  independent  of  all  others,  his  estate  cannot  be  less 
than  an  absolute  and  unqualified  fee.3 

1  "Disseisin  and  ouster  mean  very  much  the  same  thing  as  adverse  pos- 
session," say  the  court  in  Magee  v.  Magee,  37  Miss.  151.  See  Slater  v.  Rawson, 
6  Mete.  439;  Cornell  v.  Jackson,  3  Cush.  508;  Smith  v.  Burlis,  6  Johns.  216; 
Holley  v.  Hawley,  39  Vt.  531 ;  Ang.  on  Lim.  410 ;  Com.  Dig.  Seisin,  A.  1,  A.  2. 

2  2*Prest.  Abst.  284.  See  also,  3  Washb.  on  Real  Prop.  292-295 ;  Rawle 
Cov.  (3d  ed.)  23,  24;  Parker  v.  Prop,  of  Locks,  etc.,  3  Mete.  98;  Bradstreet  o[ 
Huntington,  5  Pet.  402;  2  Smith  Ld.  Cas.  529,  530,  531. 

3  Co.  Lit.  271  a;  2  Prest.  Abst.  293  ;  Wheeler  v.  Bates,  21  N.  H.  460 ;  McCall 
v.  Neely,  3  "Watts,  71.  Query:  If  one  enters  into  possession  under  the  claim  of 
a  long  term  of  years,  or  an  estate  for  life,  or  an  estate  tail,  will  not  this  quali- 
fication of  the  claim  of  title  under  which  he  enters  limit  the  estate  which 
he  would  acquire  bv  disseisin  or  adverse  possession? 

528 


CH.  XX.]  TITLE    BY    ADVERSE    POSSESSION.  §    695 

§  694.  Disseisin  and  dispossession  distinguished. — It 

is  not  every  dispossession  which  constitutes  a  disseisin.  In 
the  first  place,  a  dispossession  may  be  effected  under  a  com- 
plete and  lawful  title;  a  disseisin  is  always  a  wrongful 
dispossession,  i.e.,  it  is  never  supported  by  a  good  title.1 
Nor  is  even  every  wrongful  dispossession  a  disseisin.  In 
order  that  a  wrongful  dispossession  may  constitute  a  dis- 
seisin, the  possession  thus  acquired  must  be  actual  or  con- 
structive, visible  or  notorious,  distinct  and  exclusive,  hostile 
or  adverse.2 

§  695.  Actual  or  constructive  possession. — Possession 
may  be  actual  or  constructive.  Thus,  where  one  receives  a 
deed  of  conveyance,  by  the  very  delivery  of  the  deed,  he 
is  considered  as  being  in  constructive  possession  of  the 
land,  although  he  has  not  acquired  the  actual  possession. 
So,  also,  does  the  heir  or  devisee  acquire  constructive  pos- 
session by  force  of  the  descent  cast  or  the  devise.  Such  a 
grantee,  heir  or  devisee,  acquires  the  seisin  in  law,  and  the 
constructive  possession,  raised  by  implication  of  law,  is  but 
the  consequence  of  the  transfer  of  this  seisin.  Seisin  in 
law  and  constructive  possession  may  for  all  practical  pur- 
poses be  considered  synonymous.3     But  where  there  is  an 

1  Slater  v.  Rawson,  6  Mete.  439 ;  Smith  v.  Burtis,  6  Johns.  216. 

»  4  Kent's  Cora.  488 ;  2  Smith  Ld.  Cas.  529,  560,  561 ;  Melvin  v.  Proprs.  of 
Locks,  etc.,  5  Mete.  15 ;  Smith  v.  Burtis,  5  Johns.  218 ;  Calhoun  v.  Cook,  9  Pa. 
St.  226;  Cook  v.  Babcock,  11  Cush.  210;  Thomas  v.  Marshfield,  13  Pick.  250; 
Little  v.  Downing,  37  N.  H.  367;  Grant  v.  Fowler,  39  1ST.  H.  101 ;  Daswell  v. 
De  La  Lanza,  20  How.  32;  Bradstreet  v.  Huntington,  5  Pet.  439;  Ewing 
v.  Burnett,  11  Pet.  41;  Hawk  v.  Senseman,  6  Serg.  &  R.  21 ;  Jackson  v. 
Wheat,  18  Johns.  44 ;  Armstrong  v.  Ristean,  5  Md.  256 ;  Clarke  v.  McClure, 
10  Gratt.  305;  Magee  v.  Magee,  37  Miss.  152;  Gordon  v.  Sizer,  39  Miss.  820; 
"Wiggins  v.  Holley,  11  Ind.  2;  Wright  v.  Keithler,  7  Iowa,  92;  Robinson  v. 
Lake,  14  Iowa,  424 ;  Snoddy  v.  Kreutch,  Head,  304 ;  Turney  v.  Chamber- 
lain, 15111.  271. 

8  Co.  Lit.  153;  2  Prest.  Abst.  282;  Barr  v.  Gratz,  4  Wheat.  213;  Green  v. 
Liter,  8  Cranch,  229  ;  Wyman  v.  Brown,  50  Me.  160;  Wells  v.  Prince,  4  Mass. 
€4;  Higbee,  v.  Rice,  5  Mass.  344;  Hodges  v.  Eddy,  38  Vt.  3  !4  ;  Caldwell  v. 
Fulton,  44  Pa.  St.  475  ;  Effinger  v.  Lewis,  32  Pa  St.  367 ;  Matthews  v.  Ward, 
10  Gill  <fc  J.  443  ;  Breckinridge,  v.  Ormsby,  J  J.  Marsh.  244. 

84  *  529 


§    696  TITLE    BY    ADVERSE    POSSESSION.  [PART    III. 

,  actual  adverse  possession  by  one,  there  can  be  no  construc- 
tive possession  acquired  by  another.  "  Two  persons  cannot 
be  in  adverse  constructive  possession  of  the  same  land  at 
the  same  time."1  And  in  order  that  a  disseisin  may  be 
effected,  there  must  be  an  actual  occupation  of  the  land  to 
some  extent.  The  simple  acceptance  of  a  title  by  deed 
adverse  to  the  rightful  owner  will  not  work  a  disseisin, 
unless  an  actual  entry  is  made  upon  the  land.2  But  when 
an  actual  occupation  of  a  part  of  the  premises  has  taken 
place,  then  the  doctrine  of  constructive  possession  will, 
under  certain  circumstances,  apply,  and  extend  the  disseisin 
beyond  that,  part  of  the  land  which  is  in  the  actual  posses- 
sion of  the  disseisor.  If  possession  is  taken  under  no  color 
of  title,  the  disseisin  extends  no  farther  than  the  actual  pos- 
session.3 

§  696.   Actual  or  constructive  possession  —  Continued. 

On  the  other  hand,  where  entry  is  made  under  color  of 
title,  i.e.,  under  some  instrument  of  writing,  such  as  a  deed 
or  will,  which  purports  to  convey  a  title,  the  actual  entry 
will  place  him  in  constructive  possession  of  the  whole  tract 
of  land  described  in  the  instrument ;  and  this,  too,  where 
there  is  no  doubt  as  to  the  invalidity  of  the  deed,  whether 
such  invalidity  arises  from  a  defective  execution,  or  a  de- 

1  3  Washb.  on  Keal  Prop.  118 ;  Hodges  v.  Eddy,  38  Vt.  344. 

2  Putnam  Schools  v.  Fisher,  38  Me.  324;  Cook  v.  Babcock,  11  Cush.  210; 
3  Smith  Ld.  Cas.  5G1 ;  Little  v.  Downing,  37  N.  H.  367 ;  Robinson  v.  Lake,  14 
Iowa,  424 ;  Calhoun  v.  Cook,  9  Pa.  St.  226 ;  Armstrong  v.  Risteau,  5  Md.  256 ; 
Turney  v.  Chamberlain,  15  111.  231 ;  Fugate  v.  Pina,  49  Mo.  441. 

3  Brimmer  v.  Longwharf,  5  Pick.  131 ;  Blood  v.  "Wood,  1  Mete.  528 ;  Hatch 
v.  Yt.  Central  R.  R.,  28  Vt.  142;  Hodges  v.  Eddy,  38  Vt.  345;  Smith  v.  Hos- 
mer,  7  N.  H.  436;  Jackson  v.  Schoonmaker,  2  Johns.  230;  Bailey  v.  Carleton, 
13  N.  H.  9 ;  Brandt  v.  Ogden,  1  Johns.  156 ;  Sharp  v.  Brandon,  15  Wend.  597 ; 
Den  v.  Hunt,  Spenc.  487;  Miller  v.  Shaw,  7  Serg.  &  R.,  129;  Cluggage  v. 
Duncan,  1  Id.  113;  Piper  v.  Lodge,  16  Id.  231 ;  Davidson  v.  Beatty,  3  Har.  & 
McH.  594;  Sicard  v.  Davis,  6  Pet.  124;  Cresap  v.  Huston,  9  Gill,  269;  Mor- 
rison v.  Hays,  19  Ga.  294  ;  Steedman  v.  Hilliard,  3  Rich.  101 ;  Slice  v.  Derrick, 
2  Rich.  627;  Hanna  v.  Renfro,  32  Miss.  129;  Musick  v.  Barney,  49  Mo.  458; 
Goewey  v.  Urig,  18  111.  238. 

530 


CH.  XX.]  TITLE    BY   ADVERSE    POSSESSION.  §    696 

fective  title  in  the  grantor.1  But  a  mere  quit-claim  deed, 
releasing  all  one's  interest  in  the  land,  will  not  be  sufficient 
color  of  title  to  give  the  disseisor  constructive  possession  of 
the  part  not  in  actual  possession.  Only  such  deeds  are  gen- 
erally color  of  title,  as  the  term  is  here  understood  and 
employed,  which  operate  as  a  primary  conveyance.2  But  a 
deed,  which  is  in  form  a  quit-claim,  may  operate  as  a  pri- 
mary conveyance,  where  the  possession  is  transferred  with 
it.3  In  order  that  the  rightful  owner  may  be  divested  of 
the  whole  tract  described  in  the  deed,  the  partial  occupation 
must  be  of  such  a  character  as  to  give  rise  to  a  reasonable 
presumption,  that  the  owner  knows  that  the  entry  was  made 
under  color  of  title.  If  this  presumption  be  not  reason- 
able under  the  circumstances  of  the  case,  the  disseisin  will 
not  extend  beyond  the  actual  occupation.  Thus  if  the  title 
was  only  void  as  to  a  part  of  the  land  conveyed,  the  occu- 
pation of  that  part  to  which  the  grantor  had  title  will  not 
give  the  grantee  constructive  possession  of  the  other  part, 
to  which  he  has  no  title,  so  as  to  disseise  the  real  owner.4 


*  2  Smith's  Ld.  Cas.  563 ;  Brackett,  Petitioner,  53  Me.  228 ;  Swift  v.  Gage, 
26  Vt.  224 ;  Spaulding  v.  Warren,  25  Vt.  316 ;  Farrar  v.  Fessenden,  39  N.  H. 
279;  Hoag  v.  Wallace,  28  N.  H.  547;  Barr  v.  Gratz,  4  Wheat.  213;  Ellicott 
v.  Pearl,  10  Pet.  412;  Gardner  v.  Gooch,  48  Me.  492 ;  Jackson  v.  Newton,  18 
Johns.  355 ;  Green  v.  Lighter,  8  Cranch,  250 ;  Kennebeck  Purchase  v.  Springer, 
4  Mass.  416;  Ament  v.  Wolf,  33  Pa.  St.  331 ;  Eifert  v.  Bead,  1  Mott  &  McC. 
364;  Anderson  v.  Darby,  1  Mott  &  McC.  369;  Eoyall  v.  Lisle,  15  Ga.  545; 
Hoy  v.  Swan,  5  Md.  537;  Fugate  v.  Pina,  49  Mo.  441 ;  Musick  v.  Barney,  49 
Mo.  458;  Fairman  v.  Beal,  14  111.  244;  Hardisty  v.  Glenn,  32  111.  64;  Brooks 
v.  Bruyn,  35  111.  394 ;  Jakeway  v.  Barrett,  38  Vt.  323 ;  Russell  v.  Irwin,  38 
Ala.  48 ;  Prescott  v.  Nevers,  4  Mason,  326;  Dillingham  v.  Brown,  38  Ala.  311. 

2  Woods  v.  Banks,  14  N.  H.  111. 

3  Minot  v.  Brooks,  16  N.  H.  376.  See  generally  Pillow  v.  Roberts,  13  How. 
472;  Jackson  v.  Elston,  12  Johns.  454;  French  v.  Rollins,  21  Me.  372; 
Moss  v.  Scott,  2  Dana,  275 ;  Wclborn  v.  Anderson,  37  Miss.  162;  Charles  v. 
Saffold,  13  Texas,  94;  Wofford  v.  McKinna,  23  Texas,  46  ;  Hicks  v.  Coleman, 
25  Cal.  131;  Kimball  v.  Lohmas,  31  Cal.  154. 

*  Bailey  v.  Carleton,  12  N.  II.  9.  See  Little  v.  Mequirer,  2  Me.  176 ;  Jack- 
son v.  Woodruff,  1   Cow.  286;    Jackson  v.  Richards,  6   Cow.  617;  Sharp  v. 

531 


§    697  TITLE    BY   ADVERSE   POSSESSION.  [PART   III, 

And  it  would  seem  reasonable  that  the  term  color  of  title 
should  apply  only  to  deeds  and  other  instruments  of  con- 
veyance, which  have  been  recorded.1  So,  also,  if  the  deed 
conveys  two  separate  and  distinct  parcels  of  land,  entry  and 
actual  occupation  of  one  tract  will  not  give  constructive 
possession  of  the  other.2 

§  697.  What  acts  constitute  actual  possession  —  Visible 
ov  notorious.  — No  particular  act  or  series  of  acts  are  neces- 
sary to  be  done  on  the  land,  in  order  that  the  possession 
may  be  actual.  Any  visible  or  notorious  acts,  which  clearly 
evidence  the.  intention  to  claim  ownership  and  possession, 
will  be  sufficient  to  establish  the  claim  of  adverse  posses- 
sion.3 A  clandestine  use  of  the  premises,  of  so  secret  a 
character  that  the  owner  is  not  likely  to  know  of  it,  will 
not  constitute  a  disseisin.  The  occupation  must  be  so  noto- 
rious and  open,  that  the  owner  may  be  presumed  to  have 
notice  of  it  and  of  its  extent.*  There  are  some  acts,  so  no- 
torious in  their  character,  that  they  raise  a  conclusive  pre- 
sumption of  notice  to  the  owner  of  the  adverse  claim.  Such 
are  the  maintenance  of  fences  and  other  substantial  enclos- 


Brandon,  15  Wend.  599 ;  Chandler  v.  Spear,  22  Vt.  388 ;  White  v.  Burnley, 
20  How.  235;  Cluggage  v.  Duncan,  1  Serg.  &  R.  Ill;  Smith  v  Ingram* 
7  Ired.  175 ;  Osborne  v.  Ballew,  12  Ired.  373 ;  Seigle  v.  Louderbaugh,  5  Pa.  St. 
490. 

1  Hodges  v.  Eddy,  38  Vt.  345. 

2  Grimes  v.  Ragland,  28  Ga.  123. 

3  Ellicott  v.  Pearl,  10  Pet.  412 ;  Ewing  v.  Burnett,  11  Pet.  41 ;  Bailey  v.  Carle- 
ton,  12  N.  H.  9 ;  La  Prombois  v.  Jackson,  8  Cow.  604 ;  Blood  v.  Wood,  1  Mete. 
628 ;  Faught  v.  Holway,  50  Me.  24 ;  Ford  v.  Wilson,  35  Miss.  504 ;  Royal  v. 
Lisle,  15  Ga.  545 ;  Langworthy  v.  Myers,  4  Iowa,  18 ;  Bates  v.  Norcross,  14 
Pick.  224. 

'  2  Smith  Ld.  Cas.  563;  Cook  v.  Babcock,  11  Cush.  210;  Pray  v.  Pierce, 
7  Mass.  383;  Thomas  v.  Marshfield,  13  Pick.  250;  Atherton  v.  Johnson,  2  N. 
H.  84;  School  Dist.  v.  Lynch,  33  Conn.  330;  Doe  v.  Campbell,  10  Johns.  477; 
Doolittle  v.  Tice,  41  Barb.  181 ;  Denham  v.  Holeman,  26  Ga.  191 ;  Benje  v. 
Creagh,  21  Ala.  151;  Brown  v.  Cockerell,  33  Ala.  47;  Alexander  v.  Polk,  39 
Miss.  755. 

532 


CH.  XX.]  TITLE    BY   ADVERSE    POSSESSION.  §    697 

ures,  and  the  erection  of  buildings.1  But  in  the  case  of  the 
erection  of  buildings,  without  other  accompanying  acts  of 
ownership,  the  disseisin  would  only  extend  to  the  land  cov- 
ered by  the  buildings,  together  with  the  necessary  right  of 
ingress  and  egress.2  Merely  surveying  the  land,  and  caus- 
ing a  line  to  be  run  around  it,  and  lopping  or  slashing  trees 
to  indicate  the  course  of  the  line,  will  not  be  sufficient. 
The  enclosure  must  in  all  ordinary  cases  be  substantial.3 
But  there  are  cases  where  an  enclosure  is  not  necessary. 
Notice  of  possession  may  then  be  presumed  from  other  acts 
of  ownership.  So,  also,  where  the  property  is  of  such  a  char- 
acter, and  is  so  circumstanced,  that  there  can  be  neither 
actual  permanent  occupation  nor  residence,  on  account  of 
its  incapacity  to  receive  any  permanent  improvement,  these 
acts  will  not  be  necessary.  The  disseisin  may  be  mani- 
fested by  any  other  public  acts  of  ownership  which  were 
possible  with  property  of  that  kind.4     Very  often  the  Stat- 

1  Poignard  v.  Smith..  6  Pick.  172 ;  Cutter  v.  Cambridge,  6  Allen,  20 ;  Ben- 
nett v.  Clemence,  6  Allen,  18 ;  Bates  v.  Norcross,  14  Pick.  224 ;  Jackson  v. 
"Wasford,  7  Wend.  62 ;  Erwin  v.  Olmsted,  7  Cow.  229 ;  Lane  v.  Gould,  10 
Barb.  254 ;  Stedman  v.  Smith,  8  E.  &  Bl.  1.  But  in  the  case  of  the  erection  of 
buildings  without  other  accompanying  acts  of  ownership,  the  disseisin  would 
only  extend  to  the  land  covered  by  the  buildings,  together  with  the  necessary 
right  of  ingress  and  egress.  Poignard  v.  Smith,  6  Pick.  172;  Bennett  v.  Cle- 
mence, 6  Allen,  18;  Erwin  v.  Olmsted,  7  Cow.  229;  Stedman  v.  Smith,  8  E. 
&B1.  1. 

2  Poignard  v.  Smith,  6  Pick.  172 ;  Bennett  v.  Clemence,  6  Allen,  18;  Erwin 
v.  Olmsted,  7  Edw.  229;  Stedman  v.  Smith,  8  E.  &  Bla.  1. 

3  Kennebec  Purchase  v.  Springer,  4  Mass.  416  ;  Coburn  v.  Hollis,  3  Mete,  125 ; 
Slater  v.  Jepherson,  6  Cush.  129;  Bates  v.  Norcross,  14  Pick.  224;  Parker  v. 
Parker,  1  Allen,  245 ;  Smith  v.  Hosmer,  7  N.  H.  436 ;  Hale  v.  Glidden,  10  N.  H. 
397;  Stevens  v.  Taft,  11  Gray,  35;  Stevens  v.  Hollister,  18  Vt.  294;  Jackson 
v.  Schoonmaker,  2  Johns.  230;  Lane  v.  Gould,  10  Barb.  254;  Smith  v.  Burtis, 

6  Johns.  218;  Den  v.  Hunt,  Spenc.  487;  O'Hara  v.  Richardson,  46  Pa.  St. 
391 ;  Slico  v.  Derrick,  2  Eich.  627 ;  Smith  v.  Mitchel,  1  A.  K.  Marsh.  207 ; 
Hutton  v.  Schumaker,  21  Cal.  453 ;  Borel  v.  Rollins,  30  Cal.  415. 

*  Ewing  v.  Burnett,  11  Pet.  41;  Blood  v.  "Wood,  1  Mete.  528;  Bailey  v. 
Carleton,  12  N.  H.  9;  Thacker  v.  Guardenier,  7  Mete.  484;  Carbrey  v.  "Willis, 

7  Allen,  370;  La  Frombois  v.  Jackson,  8  Cow.  604;  Millett  v.  Fovvle,  8  Cuah., 
150 ;  Faught  v.  Holway,  50  Me.  24 ;  Den  v.  Hunt,  Spenc.  487  ;  Royall  v.  Lisle 
15  Ga.  545. 

533 


§    698  TITLE    BY   ADVERSE    POSSESSION.  [PART    III. 

utes  of  Limitations  in  the  different  States  state  expressly 
what  acts  will  constitute  a  visible  or  notorious  possession, 
and  what  will  not.  Wherever  there  are  such  provisions, 
they  will  supersede  the  presumptive  conclusions  of  law  ex- 
plained and  presented  in  this  paragraph. 

§  098.  Possession  must  be  distinct  and  exclusive.  —  The 

possession  must  also  be  distinct  and  exclusive,  i.e.,  the 
owner  must  be  actually  ousted  of  possession.  A  joint 
possession,  even  though  adverse  to  each  other,  will  not  be  a 
disseisin.  Where  two  are  in  possession,  the  seisin  follows 
the  title,  and  there  can  be  no  disseisin,  unless  the  rightful 
owner  is  altogether  deprived  of  possession.1  If  the  wrong- 
doer disturbs  the  real  owner  by  his  entry  and  joint  posses- 
sion, the  latter  may  elect  to  consider  himself  disseised,  and 
by  abandoning  possession  may  bring  his  action  of  ejectment. 
But  disseisin  by  election  is  not  sufficient  to  create  such  an 
adverse  possession  as  will  ripen  into  a  good  title.  In  order 
that  the  disturbance  of  possession  may  be  treated  by  the 
owner  as  a  disseisin,  he  must  abandon  the  possession  which 
he  has.  If  he  does  not  elect  to  abandon  the  premises  to  the 
intruder,  the  intrusion  of  the  wrong-doer  does  not  work  a 
disseisin.2  But  the  wrong-doer  need  not  be  in  exclusive 
possession  of  the  entire  premises.  His  exclusive  possession 
of  a  part,  if  he  only  claims  title  to  that  part,  will  work 
a  disseisin  as  to  that  part  as  effectually  as  if  the  owner 

1  Hawk  v.  Senseman,  6  Serg.  &  R.  21;  Calhoun  v.  Cook,  9  Pa.  St  226; 
Cfthill  v.  Palmer,  45  N.  Y.  484;  Melvin  v.  Prop'rs,  etc.,  5  Mete.  15;  Arm- 
strong v.  Risteau,  5  Md.  256 ;  Turney  v.  Chamberlain,  15  111.  271 ;  Peterson  v. 
McCullough,  50  Ind.  35;  Crispen  v.  Hannavan,  50  Mo.  536;  Gillespie  v.  Jones, 
26  Texas,  343;  Booth  v.  Small,  25  Iowa,  177;  Thompson  v.  Pioche,  44  Cal. 
508;  Slater  v.  Rawson,  6  Mete.  439;  Smith  v.  Burtis,  6  Johns.  216;  Barry. 
Gratz,  4  Wheat.  213 ;  Stevens  v.  Hollister,  18  Vt.  294 ;  Whittington  v.  Wright, 
9  Ga.  23. 

2  Taylor  v.  Horde,  1  Burr.  60;  Doe  v.  Hull,  2  D.  &  R.  38;  Prop'rs  v.  Mc- 
Parland,  12  Mass.  327;  Munro  v.  Ward,  4  Allen,  150;  Burns  v.  Lynde,  6  Al- 
len, 312;  Smiths.  Burtis,  6  Johns.  215. 

534 


CH.  XX.]  TITLE    BY   ADVERSE    POSSESSION.  §    699 

had  been  driven  out  of  possession  of  the  whole  tract  of 
land.1 

§  699.  Possession — Hostile  and  adverse. — Under  the 
early  common  law,  it  was  required  that  the  disseisor  should 
be  recognized  by  the  lord  of  the  manor,  and  his  other  ten- 
ants, as  one  of  the  peers  of  the  baron's  court,  in  order  that 
a  complete  disseisin  may  be  effected.  But  this  rule  has  long 
since  become  obsolete  in  England,  and  never  did  exist  in 
this  country.2  And  instead  of  this  complicated  process,  it 
is  now  only  required  that  the  possession  should  be  hostile 
and  adverse  to  the  rightful  owner.3  That  is,  it  must  be  held 
under  a  claim  of  title  which  is  adverse  to  the  disseisee's 
title,  and  the  intention  must  be  to  resist  the  title  of  the 
latter.4  If  this  intention  to  claim  a  hostile  and  adverse  title 
is  not  established,  the  dispossession  is  only  a  trespass,  and, 
however  lono-  continued,  will  not  make  a  disseisin.5  But 
there  need  not  be  a  wilful  entry  to  deprive  the  owner  of 
what  is  lawfully  his.     All  that  is  necessary  is  to  show  an 

1  Kellogg  v.  Mullen,  39  Mo.  174;  Tamm  v.  Kellogg,  49  Mo.  118;  Soule  v. 
Barlow,  49  Vt.  329 ;  Russell  v.  Maloney,  39  Vt.  583 ;  Bartholomew  v.  Edwards, 
1  Houst.  17 ;  Den  v.  Hunt,  20  N.  J.  L.  487. 

2  Co.  Lit.  266  b,  Butler's  note,  217 ;  3  Washb.  on  Real  Prop.  126 ;  2  Prest. 
Abst.  284. 

3  Newhall  v.  Wheeler,  7  Mass.  189;  Coburn  v.  Hollis,  3  Mete.  125;  Slater 
v.  Rawson,  6  Mete.  439 ;  Lund  v.  Parker,  3  N.  H.  49. 

*  Bradstreet  v.  Huntington,  5  Pet.  439 ;  Ewing  v.  Burnet,  11  Pet.  41 ;  Smith 
v.  Burtis,  6  Johns.  218;  Russell  v.  Davis,  38  Conn.  562;  Beatty  v.  Mason,  30 
Md.  409;  Clark  v.  McClure,  10  Gratt.  305;  Carroll  v.  Gillion,  33  Ga.  539; 
Snoddy  v.  Kreutch,  3  Head,  304;  Gordon  v.  Sizer,  39  Miss.  820;  Wiggins  v. 
Holly,  11  Ind.  2;  Musick  v.  Barney,  49  Mo.  458;  McGee  v.  Morgan,  1  A.  K. 
Marsh.  62 ;  Jackson  v.  Birney,  48  111.  203 ;  Grube  v.  Wells,  34  Iowa,  150. 

5  Putnam  School  v.  Fisher,  38  Me.  324 ;  Grant  v.  Fowler,  39  N.  H.  101 ; 
Hodges  v.  Eddy,  41  Vt.  488 ;  Morse  v.  Churchill,  lb.,  649 ;  Church  v.  Burg- 
hart,  8  Pick.  328;  Jackson  v.  Wheat,  18  Johns.  44;  Brandt  v.  Ogden,  1  Johns. 
156;  Russell  v.  Davis,  38  Conn.  562;  Beatty  v.  Mason,  30  Md.  409;  Carroll  v. 
Gillion,  33  Ga.  539;  Magee  v.  Magee,  37  Miss.  152;  Cooku.  Babcock,  11  Cush. 
210;  Jones  v.  Hockman,  12  Iowa,  108;  Grube  v.  Wells,  34  Iowa,  148;  Musick 
v.  Barney,  49  Mo.  458 ;  McGee  v.  Morgan,  1  A.  K.  Marsh.  62 ;  Jackson  v.  Bir- 
ney, 48  111.  203. 

535 


§    699  TITLE    BY   ADVERSE    POSSESSION.  [PART    III. 

unequivocal  claim  of  title  adverse  to  the  real  owner.  And 
if  the  claim  is  made  under  a  mistake  of  fact  or  law,  and  the 
alleged  disseisor  honestly  believes  the  land  to  belong  to  him, 
it  will  be  just  as  much  an  act  of  disseisin  as  if  it  had  been 
done  knowingly,  and  with  the  express  purpose  to  defraud 
the  rightful  owner.1  ,  An  apparent  exception  to  this  rule 
arises  where  one  occupies  land  up  to  a  certain  line,  whether 
indicated  by  a  fence  or  not,  under  a  mistaken  belief  that  it 
was  the  true  line,  but  with  no  intention  to  claim  beyond  the 
actual  line,  or  legal  boundary.  Such  possession  will  not  be 
deemed  so  adverse  as  to  cause  the  Statute  of  Limitations  to 
run  against  the  rightful  claim.2  .;But  if  the  adjoining  owners 
orally  agreed  upon  a  dividing  line  as  the  true  line,  the  pos- 
session would  be  adverse  to  the  line  so  agreed  upon,  and 
would  ripen  into  a  good  title  b}r  the  lapse  of  time.  But  not 
so,  if  they  merely  agreed  to  build  a  fence  for  convenience, 
and  without  any  intention  to  consider  it  the  true  line.3  As 
a  general  proposition,  any  acts  of  ownership  exercised  by 
the  wrong-doer,  which  would  make  his  possession  sufficiently 
visibie  and  notorious  as  to  raise  the  presumption  of  notice 
to  the  owner  of  such  adverse  holding,  will  be  ample  evidence 
of  the  adverse  claim  of  title,  and  actual  notice  to  the  owner 
or  an  express  claim  or  affirmation  of  such  claim  of  title  is 
not  required  to  establish  its  existence.  But  such  a  posses- 
sion never  raises  a  conclusive  presumption  of  an  adverse 
claim.  It  is  only  prima  facie  proof  of  it,  and  may  be  re- 
butted by  the  proof  of  other  facts,  which  show  that  the 

1  Johnson  v.  Gorham,  38  Conn.  521 ;  Bryan  v.  Atwater,  5  Day,  181 ;  Rob- 
inson v.  Phillips,  65  Barb.  418;  s.  c,  56  N.  Y.  634;  Russell  v.  Maloney,  39  Vt 
583  ;  Faught  v.  Holway,  50  Me.  24. 

2  Huntington  v.  Whaley,  29  Conn.  391;  Holton  v.  Whitney,  30  Vt.  410; 
Howard  v.  Reedy,  29  Ga.  154;  Brown  v.  Cocker  ill,  33  Ala.  45;  St.  Louis  Uni- 
versity v.  McCune,  28  Mo.  481. 

3  Burrell  v.  Burrell,  11  Mass.  294;  Doe  v.  Bird,  11  East,  49;  Bradstreet  v. 
Huntington,  5  Pet.  439;  Russell  v.  Maloney,  39  Vt.  578;  Smith  v.  Hosmer, 
7  N.  H.  436 ;  Duke  v.  Harper,  6  Yerg.  285. 

536 


CH.  XX.]  TITLE    BY  ADVERSE   POSSESSION.  §    700 

holding  was  not  intended  to  be  adverse  to  the  rightful  owner. 
And  where  the  character  of  the  possession,  i.e.,  whether 
subordinate  or  adverse,  is  doubtful,  the  presumption  of  law 
is  that  it  is  subordinate  and  not  adverse  to  the  lawful 
owner.1 

§  700.  Adverse  possession,  when  entry  was  lawful.  — 

It  is  a  legal  maxim  that  when  once  the  seisin  is  proved  to 
be  in  one,  it  will  be  presumed  to  continue  in  that  person 
until  the  presumption  is  overthrown  by  the  proof  of  facts 
inconsistent  therewith.2  If,  therefore,  the  entry  is  made 
with  the  consent  of  the  owner,  and  subservient  to  his  claim 
of  title,  the  law  will  presume  that  the  continued  possession 
is  subordinate  to  the  superior  title  of  the  owner.  So  it  has 
been  held  where  one  enters  under  a  bond  for  a  deed  with- 
out paying  the  consideration,  or  with  the  intent  to  purchase, 
and  not  to  claim  adverse  title  to  the  owner.3  But  if  the 
purchase  money  has  been  paid,  the  possession  is  presumed 
to  be  adverse.4  Such  also  is  the  rule  in  regard  to  the  pos- 
session of  the  joint  estate  by  one  of  several  tenants  in  com- 
mon.5 Such  also  is  the  case  with  the  possession  of  the  cestui 
que  trust  and  trustee  under  the  trust.6     They  are  both  subor- 

1  Smith  v.  Burtis,  6  Johns.  218;  Jackson  v.  Sharp,  9  Johns.  163;  Stevens  v. 
Taft,  11  Gray,  36;  Smith  v.  Hosmer,  7  N.  H.  436;  Pipher  v.  Lodge,  16  Serg. 
&  R.  229;  Pierson  v.  Turner,  2  Ind.  123  ;  Alexander  v.  Polk,  39  Miss.  755. 

2  Long  v.  Mast,  11  Pa.  St.  189;  Babcock  v.  Utter,  1  Abb.  App.  27;  Ste- 
phens v.  McCormick,  5  Bush,  181. 

3  Knox  v.  Hook,  12  Mass.  329 ;  Brown  v.  King,  5  Mete.  173 ;  Vrooman  v. 
Shepherd,  14  Barb.  441 ;  Den  v.  Kip,  26  N.  J.  L.  351 ;  Ripley  v.  Yale,  18  Vt. 
220;  Stamper  v.  Griffin,  12  Ga.  450;  Ormond  v.  Martin,  37  Ala.  604;  Mc- 
Clannahan  v.  Barrow,  27  Miss.  664. 

*  Brown  v.  King,  5  Mete.  173. 

6  McClung  v.  Ross,  5  Wheat.  124;  Zeller's  Lessee  v.  Eckert,  4  How.  295; 
Bennett  v.  Bullock,  35  Penn.  364  ;  Peters  v.  Jones,  35  Iowa,  512 ;  Challefoux  v. 
Ducharme,  8  Wis.  287  ;  Owen  v.  Morton,  24  Cal.  376 ;  Alexander  v.  Kennedy, 
19  Texas,  488.     See  ante,  sect.  251. 

6  Smith  v.  King,  16  East,  283.  That  is,  the  cestui  que  trust  may  dis- 
seise his  trustee  and  divest  him  of  his  legal  estate,  if  the  intention  to  disseise 
is  manifest,  although  his  possession  is  usually  presumed  to  be  subject  to  the 

537 


§    701  TITLE    BY    ADVERSE    POSSESSION.  [PART    III. 

dinate,  and  where  one  holds  over  after  the  termination  of  a 
lawful  estate  he  is  tenant  at  sufferance,  and  does  not  by  such 
holding  over  disseise  the  reversioner.1  But  these  legal  pre- 
sumptions in  the  different  cases  mentioned  are  all  disputable 
presumptions;  and  although  it  has  been  held  that  adverse 
possession  cannot  be  acquired  by  one  co-tenant  against  the 
others,  yet  now  it  is  the  universal  rule  that  in  any  of  the 
above  mentioned  cases  of  lawful  entry  the  lawful  and  subor- 
dinate holding  may  be  changed  to  a  hostile  and  adverse 
possession  by  a  distinct  and  unequivocal  disavowal  of  the 
owner's  superior  title,  and  actual  notice  to  him  of  such  dis- 
claimer. In  all  these  cases  the  disavowal  or  disclaimer  must 
be  accompanied  and  established  by  visible  and  notorious 
acts,  inconsistent  with  the  ownership  of  the  supposed  dis- 
seisee, such  as  a  refusal  to  recognize  the  claim  to  the  profits, 
or  a  share  therein.2 

§  701.  Disseisor's  power  to  alien. — It  is  generally  ac- 
cepted, that  mere  naked  possession  will  be  sufficient  to 
enable  the  one  in  possession  to  make  a  deed  of  conveyance 
with  or  without  covenants  of  warranty,  and  the  grantee  would 
thereby  acquire  a  good  title  which  can  only  be  defeated  by 
the  true  owner.  So  much  the  more  certain  is  it  that,  where 
such  possession  amounts  to  a  disseisin,  and  the  intruder  has 
therefore  gained  a  title  even  against  the  real  owner,  the 
disseisor  has  sufficient  seisin  to  convey  the  estate.3     In  fact, 

trust.  Whiting  v.  Whiting,  4  Gray  241.  But  in  no  rase  will  the  possession  of 
the  trustee  be  deemed  to  be  adverse  to  the  cestui  que  trust.  He  cannot  dis- 
seise the  cestui  que  t?iist.  Zeller's  Lessee  v.  Eckert,  4  How.  295  ;  Decouche  v. 
Savetier,  3  Johns.  Ch.  216.  But  a  disseisin  of  the  trustee  will  work  a  dis- 
seisin of  the  cestui  que  trust.     See  ante  sect.  451.  , 

1  See  ante,  sect.  226. 

2  Lafavour  v.  Homan,  3  Allen,  355 ;  Roberts  v.  Morgan,  30  Vt.  319 ;  Holley 
v.  Hawley,  39  Vt.  534 ;  Jackson  v.  Moore,  13  Johns.  516 ;  Ripley  v.  Bates,  1 10 
Mass.  162;  Kinsman  v.  Loomis,  11  Ohio,  475;  Melling  v.  Leak,  16  C.  B.  652. 
See  ante,  sects.  226,  251,  326. 

3  Currier  v.  Gale,  9  Allen,  525 ;  Slater  v.  Rawson,  6  Mete.  439 ;  Hubbard  v. 
Little,  9  Cash.  476;  Overfield  v.  Christie,  7  Serg.  &  R.  173.     See  Christy  v. 

538 


CH.  XX.]  TITLE   BY  ADVERSE   POSSESSION.  §    702 

according  to  the  common  law,  he  alone  had  the  power  to 
make  a  conveyance.  The  disseisee  had  nothing  but  a  chose 
in  action,  which  was  not  assignable.1  The  estate  also  de- 
scends to  the  disseisor's  heirs,  and  at  common  law  the  de- 
scent cast  in  such  a  case  vested  in  the  heirs  so  complete  a 
title,  that  the  right  of  entry  was  taken  away,  and  the  estate 
could  only  be  defeated  by  an  action  for  recovery  of  the 
possession.2 

§  702.  Betterments.  —  At  common  law  if  a  bona  fide 
holder  of  a  defeasible  title  made  improvements,  while  he 
was  in  possession  of  the  land,  he  could  not  claim  compen- 
sation for  them  from  the  rightful  owner.  The  improve- 
ments became  a  part  of  the  realty,  since  they  were  attached 
without  the  consent  of  the  lawful  owner.  Nor  could  a 
bona  fide  disseisor  claim  the  right  to  remove  them.3  But 
where  the  real  owner  in  his  ejectment  suit  asked  for  a  judg- 
ment for  mesne  profits,  the  bona  fide  disseisor  could  off-set 
the  same  by  his  claim  for  his  improvements.4  Statutes 
however  have  been  passed  in  some  of  the  States  enabling 
the  disseisor  to  bring  an  original  action  for  improve- 
ments.5 


Alford,  17  How.  601;  Haynes  v.  Boardman,  119  Mass.  414;  Alexanders. 
Stewarts,  50  Vt.  87 ;  Schrack  v.  Zubler,  34  Pa.  St.  38 ;  Kruse  v.  "Wilson,  29 
111.  233. 

1  See  post,  sect.  795. 

2  3  Washb.  on  Real  Prop.  130 ;  Co.  Lit.,  238  a ;  Smith  v.  Burtis,  6  Johns. 
217. 

3  Powell  v.  M.  &  B.  Mfg.  Co.,  3  Mason,  369 ;  2  Kent's  Com.  334-338 ;  West 
v.  Stewart,  7  Pa.  St.  122 ;  ante,  sect.  2. 

4  Murray  v.  Gouverneur,  2  Johns.  438 ;  Jackson  v.  Loomis,  4  Cow.  168 ; 
Green  v.  Biddle,  8  Wheat.  181;  Beverley  v.  Burke,  9  Ga.  440;  Matthews  v. 
Davis,  6  Humph.  324 ;  Worthington  v.  Young,  8  Ohio,  401 ;  Burrows  v.  Pierce, 
6  La.  An.  303. 

5  3  Pars,  on  Con.  221 ;  Cooley  on  Torts,  433 ;  2  Kent's  Com.  335.  See 
Bright  v.  Boyd,  1  Story,  494;  Bailey  v.  Hastings,  15  N.  H.  525;  Martin  v.  At- 
kinson, 7  Ga.  228 ;  Herring  v.  Pollard ;  4  Humph.  362 ;  Lamar  v.  Minter,  13 
Ala.  31. 

539 


§    704  TITLE   BY  ADVERSE    POSSESSION.  [PART    III. 

§  703.  Title  by  adverse  possession  —  How  defeated. — 

The  title  which  is  acquired  by  adverse  possession  or  by  dis- 
seisin is  not  an  absolute  title.  It  may  be  defeated  by  the 
rightful  owner.  Disseisin  leaves  in  the  owner  only  a  chose 
in  action,  for  the  vindication  of  which  are  provided  two 
principal  remedies.  One  is  the  right  of  entry  without  the 
aid  of  the  courts,  and  the  other  is  the  recovery  of  the  pos- 
session by  the  judgment  of  the  court.  A  mere  re-entry 
upon  the  land  by  the  disseisee  or  by  his  authorized  agent, 
with  the  intention  to  recover  the  seisin  is  sufficient  to  regain 
the  seisin,  even  though  the  disseisor  is  not  actually  ex- 
pelled, since  the  joint-possession  by  them  destroys  the 
element  of  exclusiveness,  necessary  to  disseisin.  And  al- 
though a  casual  entry,  without  an  intention  to  regain 
the  seisin,  is  not  sufficient  for  this  purpose,  it  is  not 
necessary  for  the  disseissee  to  make  any  express  declar- 
ation of  his  intention  to  the  disseisor.1  So  also  does  an 
abandonment  of  the  possession  by  the  disseisor  revest  the 
seisin  in  the  rightful  owner.2  Of  course  the  seisin  so 
gained  may  be  again  lost  by  an  ouster,  and  such  ouster  is  a 
re-disseisin.3  The  exact  form  of  action,  where  the  aid  of 
court  is  called  into  requisition,  depends  upon  the  local 
laws  of  practice.  The  usual  remedy  is  the  common  law 
action  of  ejectment. 

§  704.  Title  by  adverse  possession  —  How  made  ab- 
solute. —  Inasmuch  as  disseisin  leaves  only  a  chose  in  action 
in  the  disseisee,  and  the  disseisor  acquires  thereby  a  title 

1  Peabody  v.  Hewett,  52  Me.  46 ;  Brickett  v.  Spofford,  14  Gray,  514 ;  Bur- 
rows v.  Gallup,  32  Conn.  499 ;  O'Hara  v.  Richardson,  46  Pa.  St.  390. 

2  Melvin  v.  Prop'rs,  etc.,  5  Mete.  15;  Sawyer  v.  Kendall,  10  Cush.  241; 
Potts  v.  Gilbert,  3  Wash.  C.  Ct.  475 ;  Cleveland  v.  Jones,  3  Strobh.  479  n. 
Unless  there  are  two  joint  disseisors,  when  the  abandonment  by  one  would 
only  make  the  other  disseisor  sole  seised.    Allen  v.  Holton,  20  Pick.  458. 

»  3  Washb.  on  Real  Prop.  130. 
540 


CH.  XX.]  TITLE    BY   ADVERSE   POSSESSION.  §    704 

good  and  perfect  against  all  the  world  except  the  true 
owner;  if,  for  any  reason,  the  law  takes  away  the  right  of 
action,  the  title  will  become  absolute  in  the  disseisor.  The 
remedies  for  the  recovery  of  real  property  may  be  barred 
by  one  of  two  causes,  first,  by  the  lapse  of  time  under  the 
Statute  of  Limitations,  and  secondly,  by  estoppel.  These 
will  constitute  the  subjects  of  the  two  following  sections. 

541 


SECTION    IV. 

STATUTE    OF    LIMITATIONS. 

Section  713.  "What  the  statute  enacts. 

714.  Adverse  possession  —  Continuous  and  uninterrupted. 

715.  Against  whom  the  statute  runs. 

716.  How  and  when  statute  operates. 

717.  Effect  of  the  statute. 

§  713.  What  the  statute  enacts. — In  general,  every 
Statute  of  Limitations  enacts  that  no  action  for  the  recovery 
of  real  property  can  be  maintained,  and  no  such  right  of 
entry,  if  any  exists,  can  be  exercised,  unless  instituted 
within  the  period  of  time  limited  by  the  statute,  after  the 
right  has  accrued.  The  first  statute  for  the  limitation 
of  real  actions  was  passed  in  32  Hen.  VIII.  ch.  2,  and  a 
more  general  one  in  21  Jac.  I.1  But  the  limitation  of  actions 
is  governed  by  the  lex  fori,2  and  as  each  State  in  the  Amer- 
ican Union  has  its  own  Statute  of  Limitations,  varying 
widely  in  detail,  the  limits  of  this  book  will  only  permit  of 
a  discussion  of  the  general  effect  of  such  statutes,  referring 
the  student  to  the  different  statutes  for  the  details.  The 
statute,  21  Jac.  I.,  placed  the  limitation  of  actions  for  the 
recovery  of  real  property  at  twenty  years  from  the  time  the 
right  of  action  accrued,  and  this  period  has  been  more  or 
less  adopted  in  this  country,  although  in  a  number  of  States 
the  period  has  been  reduced  to  ten  years,  while  in  others  a 
different  period  has  been  established. 

§  714.  Adverse  possession  —  Continuous  and  uninter- 
rupted.—  But  in  all  of  the  States  the  person  who  claims 

1  Ang.  on  Lira.  1-6.  2  Ang.  on  Lim.  65. 

542 


CH.  XX.]  STATUTE    OF    LIMITATIONS.  §    714 

the  benefit  of  the  statute,  together  with  his  privies,  must 
have  held  adverse  possession  for  the  entire  period  of  limi- 
tation. That  is,  there  must  not  only  have  been  an  actual 
and  complete  disseisin,  as  explained  in  the  preceding  sec- 
tion, but  such  disseisin  must  be  continued  and  uninterrupted 
during  the  statutory  period.  Any  discontinuance  or  aban- 
donment of  the  possession  will  prevent  the  statute  from 
operating.1  Any  yielding  of  possession  to  the  claim  of  the 
owner,  or  abandonment  of  actual  possession,  although  with 
no  intention  to  give  up  his  claim  of  adverse  possession;  or, 
if  at  any  time  during  the  statutory  period  the  rightful  owner 
could  not  find  an  actual  occupant  against  whom  to  bring  his 
action  of  ejectment  ;  any  of  these  acts  or  incidents  will  con- 
stitute such  a  discontinuance  of  the  disseisin  or  adverse 
possession  as  will  prevent  the  operation  of  the  statute.2  But 
it  need  not  be  a  continuous  adverse  possession  in  the  one 
person.  The  title  by  disseisin  may  be  assigned,  and  it  de- 
scends to  the  disseisor's  heirs.  If,  therefore,  two  or  three 
disseisors  hold  the  land  successively -and  in  privity  with  each 
other,  whether  by  purchase  or  by  descent,  and  their  several 
periods  of  holding  make  up  the  requisite  statutory  period, 
the  owner  will  be  just  as  effectually  barred  as  if  the  land 
had  been  held  by  one  Derson  during  the  entire  time.3     This 

1  Doswell  v.  De  La  Lanza,  20  How.  32 ;  Thomas  v.  Marshfield,  13  Pick. 
250;  School  District  v.  Lynch,  33  Conn.  380;  Denham  v.  Holeman,  26'  Ga. 
191 ;  Peabody  v.  Hewett,  52  Me.  46;  Pederick  v.  Searle,  5  Serg.  &  R.  240; 
Den  v.  Mulford,  1  Hayw.  320;  Winslow  v.  "Winslow,  52  Ind.  8;  Bowman  v. 
Lee,  48  Mo.  335 ;  McXamee  v.  Moreland,  26  Iowa,  96 ;  San  Francisco  v.  Fulde, 
37  Cal.  849. 

2  Pederick  v.  Searle,  5  Serg.  &  R.  240;  Den  v.  Mulford,  1  Hayw.  320; 
"Webb  v.  Richardson,  42  Vt.  465 ;  San  Francisco  v.  Fulde,  37  Cal.  349. 

3  Melvin  v.  Proprietors,  etc.,  5  Mete.  15;  Sawyer  v.  Kendall,  10  Cush,  241 ; 
Alexander  v.  Pendleton,  8  Cranch,  462;  Doe  v.  Campbell,  10  Johns.  477; 
Jackson  v.  Leonard,  9  Cow.  653;  Leonard  v.  Leonard,  7  Allen,  227;  Doe  v. 
Barnard,  13  Q.  B.  945 ;  Armstrong  v.  liisteau,  5  Md.  256 ;  Shrack  v.  Zubler, 
34  Pa.  St.  38 ;  Christy  ».  Alford,  17  How.  601 ;  Simpson  v.  Downing,  23  Wend. 
316;  Doe  w.Brown,  4  Ind.  143;  Chilton  v.  Wilson,  9  Humph.  399;  Johnson 
v.  Nash,  15  Texas,  419 ;  Outcalt  v.  Ludlow,  32  N.  J.  239 ;  Clock  v.  Gilbert,  39* 

543 


§  715  STATUTE  OF  LIMITATIONS.        [PART  III. 

rule  has  oeen  sustained  and  applied  where  the  successive 
holders,  although  claiming  under  each  other,  have  not  ac- 
quired title  by  any  deed  or  instrument  in  writing,  but  merely 
by  parol  contract.1  But  there  must  be  privity  of  estate 
between  the  successive  disseisors,  in  order  that  their  several 
holdings  may  be  tacked  together  to  produce  a  continuity  of 
adverse  possession.2  But  in  some  of  the  States  the  entire 
doctrine  is  repudiated,  and  a  continuous  holding  by  one 
person  or  his  heirs  for  the  statutory  period  is  required  to 
raise  a  bar  to  the  action  by  the  owner  for  the  recovery  of 
his  land.3 

§  715.  Against  whom  the  statute  runs. — The  statute 
runs  against  the  rightful  owner,  and  all  other  persons  stand- 
ing in  privity  with  him.  But  the  statute  only  bars  the  ac- 
tions when  the  statutory  period  has  elapsed  after  the  time 
when  the  right  of  action  accrued.  The  statute,  therefore, 
does  not  begin  to  run  against  a  person  until  he  has  a  right 
to  bring  the  action.  Where  the  tenant  of  a  particular  estate 
is  disseised  and  is  barred  by  the  statute,  since  the  rever- 
sioner is  not  entitled  to  possession  until  the  termination  of 
the  particular  estate,  the  statute  will  not  affect  his  right  of 

Conn.  94.  But  the  possession  of  tenants  of  dower  or  curtesy  cannot  be  tacked 
on  to  the  possession  of  the  husband  or  wife,  respectively,  in  order  to  make  up 
the  statutory  period  of  adverse  possession.  Doe  v.  Wing,  6  C.  &  P.  538,  and 
cases  cited  supra. 

1  Smith  v.  Chapin,  31  Conn.  530. 

2  Austin  v.  Rutland  R.  R.,  45  Vt.  215 ;  San  Francisco  v.  Fulde,  37  Cal.  349 ; 
Sheffleton  v.  Nelson,  2  Sawyer,  540;  Simpson  v.  Downing,  23  Wend.  316; 
Shrack  v.  Zubler,  34  Pa.  St.  38 ;  Christy  v.  Alvord,  17  How.  601.  In  Ten- 
nessee privity  of  estate  is  not  necessary  under  the  statute.  It  is  sufficient  that 
the  owner  has  not  been  in  possession  during  the  statutory  period.  Scales  v. 
Cockrill,  3  Head,  435.  See  to  the  same  effect,  Chandler  v.  Lunsford,  4  Dev. 
&  B.  409.  And  see  Fanning  v.  Wilcox,  3  Day,  258 ;  McCoy  v.  Dickinson 
College,  5  Serg.  &  R.  254. 

s  3  Washb.  on  Real  Prop.  147 ;  King  v.  Smith,  Rice,  10.     This  theory  has 
lately  been   confirmed  by  the  Supreme  Court  of  South  Carolina.    Ellen  v. 
Ellen,  16  S.  C.  132. 
544 


CH.  XX.]  STATUTE    OF    LIMITATIONS.  §    715 

action  during  the  continuance  of  the  particular  estate.  The 
disseisor  acquires  an  absolute  title  to  only  the  tenant's  estate ; 
the  reversioner  is  only  disseised  from  the  time  that  the  ten- 
ant's estate  is  at  an  end,  and  he  has  a  right  to  recover  the 
possession.1  But  the  disseisin  of  the  mortgagor  is  an  im- 
mediate disseisin  of  the  mortgagee,  and  vice  versa.2  In 
addition  to  this  restriction  upon  the  operation  of  the  statute 
the  statutes  generally  contain  a  saving  clause,  preventing 
the  statute  from  running  against  certain  persons  who  are 
under  disabilities.  Although  there  may  be  a  different  rule 
prevailing  in  one  or  two  of  the  States,  in  order  that  the  dis- 
ability, such  as  coverture  or  infancy,  etc.,  may  prevent  the 
operation  of  the  statute,  it  must  have  existed  at  the  time 
that  the  statute  began  to  run.  If  it  arises  subsequently, 
it  can  have  no  effect.3  It  will  not  stay  the  operation 
of  the  statute.  And  this  rule  governs  whether  the  disa- 
bility arises  subsequently  through  the  acts  of  the  par- 
ties, as  in  the  case  of  the  subsequent  marriage  of  a  feme 
sole,*  or  it  occurs  through  the  force  of  natural  causes,  such 
as  subsequent  insanity,  or  where  the  disseisee  dies,  and  his 
title  descends  to  an  infant  heir.5  It  is  usual,  however,  in 
the  case  of  descent  to  infant  heirs,  to  provide  that  the  time 
of  limitation  shall  be  prolonged,  so  that  the  actions  will  not 
be  barred  until  the  lapse  of  a  stated  period  after  arrival  at 

1  Devyr  v.  Schaefer,  55  N.  Y.  451 ;  Jackson  v.  Schoonmaker,  4  Johns.  390 ; 
Miller  v.  Ewing,  6  Cush.  34;  Kaymond  v.  Holden,  2  Cush.  269;  Gernet  v. 
Lynn,  31  Pa.  St.  94;  Pinkney  v.  Burrage,  30  N.  J.  L.  21;  Salmons  v.  Davis, 
29  Mo.  176. 

2  Poignard  v.  Smith,  8  Pick.  272 ;  Dadmun  v.  Lamson,  9  Allen,  85. 

3  Mercer's  Lessee  v.  Selden,  1  How.  37 ;  Cotterell  v.  Dutton,  4  Taunt.  820 ; 
Edson  v.  Munsell,  10  Allen,  557 ;  Gage  v.  Smith,  27  Conn.  74 ;  Tracy  v. 
Atherton,  36  Vt.  503 ;  Eeimer  v.  Stuber,  20  Pa.  St.  458 ;  Little  v.  Downing, 
37  N.  H.  355;  Peters  v.  Jones,  35  Iowa,  512;  McLane  v.  Moore,  6  Jones  L. 
520;  Haynes  v.  Jones,  2  Head,  372;  Clark's  Ex'rs  v.  Trail,  1  Mete.  (Ky.)  40. 

4  Thorp  v.  Raymond,  16  How.  247;  Carrier  v.  Gale,  3  Allen,  328. 

5  Allis  v.  Moore,  2  Allen,  306;  Flemings.  Griswold,  3  Hill,  85;  Becker  v. 
Van  Valkenburgh,  29  Barb.  324 ;  Lincoln  v.  Purcell,  2  Head,  143. 

35  545 


§  717  STATUTE  OF  LIMITATIONS.        [PART  III. 

majority.  It  is  also  the  general  rule,  in  the  absence  of  an 
express  statutory  provision,  that  the  Statute  of  Limitations 
will  not  run  against  the  State  or  the  United  States.  Nullum 
tempus  occurril  regi.1 

§  716.  How  and  when  statute  operates.  —  The  statute 
not  only  protects  the  title  acquired  by  adverse  possession, 
when  it  is  assailed  by  plaintiff  in  an  action  of  ejectment, 
but  it  may  also  be  relied  upon  to  vindicate  his  right  to  pos- 
session, where  he  has  been  ousted  and  he  is  forced  to  his 
action  to  recover  possession.  The  statute  not  only  bars  the 
action,  but  it  takes  awav  the  disseisor's  former  right  to  regain 
seisin  by  an  entry.  Any  entry,  therefore,  which  he  may 
make  after  the  lapse  of  the  period  of  limitation,  is  a  disseisin 
and  does  not  reinvest  him  with  the  lawful  seisin.  The  stat- 
ute, therefore,  may  be  set  up  by  a  plaintiff  in  ejectment  in 
support  of  his  title,  even  against  one  who  has  a  clear  paper 
title.2  And  it  has  also  been  held,  where  ejectment  is  brought 
by  disseisee,  and  the  disseisor  with  possession  for  the  stat- 
utory period  suffers  judgment  by  default,  he  may  set  up 
the  statute  in  a  subsequent  action  of  ejectment,  in  which 
he  is  plaintiff.3 

§  717.  Effect  of  the  statute. — All  the  earlier  authori- 
ties held  that  the  only  effect  of  the  Statute  of  Limitations 
was  to  bar  the  remedy,  and  that  it  did  not  affect  the  sub- 
stantive right,  whether  the  action  was  to  recover  real  prop- 
erty or  was  only  a  personal  chose  in  action.*     And  this 

1  Lindsey  v.  Miller,  6  Pet.  660;  Burgess  v.  Gray,  16  How.  48;  Oaksmith 
v.  Johnston,  92  U~.  S.  343 ;  People  v.  Van  Rensselaer,  8  Barb.  189 ;  Kingman 
v.  Sparrow,  12  Barb.  201;  Ward  v.  Bartholomew,  6  Pick.  409;  Vickery  v. 
Benson,  26  Ga.  590 ;  Gardiner  v.  Miller,  47  Cal.  570. 

2  Ang.  on  Lim.,  sects.  380,  381 ;  Hughes  v.  Graves  39  Vt.  365 ;  Phillips  v. 
Kent,  23  N.  J.  L.  155. 

3  Jackson  v.  Diffendorff,  3  Johns.  269. 

*  Ang.  on  Lim.,  sects.  1,  7 ;  3  Washb.  on  Real  Prop.  146 ;  Davenport  v. 
Tyrrel,   1  "W.  Bl.  975;   McElmoyne  v.  Cohen,   13   Pet.   312;  Townsend  v. 
Jemison,  29  How.  407 ;  Bulger  v.  Roche,  11  Pick.  36. 
546 


CH.  XX.]  STATUTE    OF    LIMITATIONS.  §    717 

would  appear  to  be  the  reasonable  construction  of  the  stat- 
utes. They  in  express  terms  bar  the  actions.  But  of  late 
years  some  of  the  courts  have  gone  further  and  held  that 
the  statute  affected  also  the  right  or  title  of  the  disseisee.1 
Mr.  Washburn  says  that  "  the  operation  of  the  statute  takes 
away  the  title  of  the  real  owner,  and  transfers  it,  not  in 
form,  indeed,  but  in  legal  effect  to  the  adverse  occupant.  "2 
The  statute  may  have  the  effect  of  destroying  the  title  of 
the  owner  altogether  and  for  all  purposes,  but  it  cannot  be 
said  to  transfer  it  to  the  disseisor.  His  title  is  acquired  by 
adverse  possession,  and  it  is  only  made  perfect  by  render- 
ing the  rightful  owner  powerless  to  defeat  it,  either  by  entry 
or  by  ejectment.  The  only  real  value  of  this  distinction 
lies  in  the  settlement  of  a  question  arising  under  the  subject 
of  title  by  abandonment.3 

1  School  District  v.  Benson,  31  Me.  384.  See  Steel  v.  Johnson,  4  Allen, 
426 ;  Schall  v.  Williams  Valley  K.  E.,  35  Pa.  St.  191 ;  Pederick  v.  Searle,  5 
Serg.  &  R.  240 ;  Moore  v.  Luce,  29  Pa.  St.  262 ;  Armstrong  v.  Risteau,  5  Md. 
256;  Ford  v.  Wilson,  35  Miss.  504;  Grant  v.  Fowler,  39  N.  H.  103;  Blair  v. 
Smith,  16  Mo.  273.  See  3  Washb.  on  Real  Prop.  163,  164 ;  Bliss  on  Code 
Pleading,  sect.  356. 

*  3  Washb.  on  Real  Prop.  164. 

3  See  poat,  sect.  740. 

547 


SECTION  V. 

ESTOPPEL. 

Section  724.  Definition. 

725.  Estoppels  in  pais. 

726.  Is  fraud  necessary  to  estoppel  in  pais. 

727.  Estoppel  in  deed. 

728.  Estoppel  in  deed  —  Continued. 

729.  Effect  of  estoppel  upon  the  title. 

730.  Effect  of  estoppel  —  Continued. 

731.  Estoppel  binding  upon  whom. 

§  724.  Definition. — A  title  by  adverse  possession  may 
aiso  be  perfected  by  estoppel.  Estoppel  is  an  admission  or 
representation  which  is  held  by  law  to  be  conclusive  upon 
the  party  making  it,  because  its  disproof  would  result  in 
injury  to  him  who  relied  upon  its  truth.  The  subject  has  a 
general  reference  to  all  branches  of  the  law.  In  its  refer- 
ence  to  titles  to  real  property  they  may  be  divided  into 
estoppels  in  pais  and  estoppels  by  deed.1 

§  725.  Estoppels  in  pais.  — An  estoppel  in  pais  \s  a  rep- 
resentation, either  by  act  or  by  word,  or  even  in  some  cases 
by  silence,  made  by  one  party  to  another  for  the  purpose 
of  influencing  the  latter  in  reference  to  the  title  or  bound- 
ary line  of  the  property  about  to  be  purchased  by  the  lat- 
ter.2    The  representation,  in  order  to  constitute  an  estoppel, 

1  3  Washb.  on  Real  Prop.  70 ;  1  Prest.  Abst.  421 ;  Welland  Canal  b.  Hatha- 
way, 8  Wend.  480;  Hanrahan  v.  O'Reilly,  102  Mass.  204;  Sinclair  v.  Jackson, 
8  Cow.  586 ;  Douglass  v.  Scott,  5  Ohio,  199 ;  Waters'  Appeal,  35  Pa.  St  623 ; 
Co.  Lit.  352  a. 

2  Ham  v.  Ham,  14  Me.  351 ;  Attorney-General  v.  Merrimack  Co.,  14  Gray, 
586;  Hicks  v.  Cram,  17  Vt.  449;  Barker  v.  Bell,  37  Ala.  359;  Rutherford  v. 
Taylor,  38  Mo.  315;  Bangan  v.  Mann,  69  111.  492;  Mc Williams  v.  Morgan,  61 
111.  89. 

548 


CH.  XX.]  ESTOPPEL.  §    726 

must  refer  to  facts  not  equally  within  the  knowledge  and 
reach  of  both  parties.  If  the  purchaser,  who  relies  upon 
the  representation,  had  other  convenient  means  of  ascer- 
taining the  truth  of  the  case,  there  will  be  no  estoppel.1 
The  party  seeking  to  establish  the  estoppel  must  show  that 
he  actually  relied  upon  the  representation,  and  was  thereby 
deceived.2  It  is  further  required  that  the  representation 
must  have  been  made  with  the  intention  to  influence  the 
conduct  of  the  party  misled,  or  it  was  so  made  that  the  lat- 
ter might  reasonably  have  been  expected  to  rely  upon  it.3 

§  726.  Is  fraud  necessary  to  estoppel  in  pais?  —  It  has 

been  a  disputed  question  how  far  the  element  of  fraud  is 
necessary  to  constitute  a  false  representation  a  ground  for 
raising  an  estoppel.  A  large  number  of  cases  hold  that,  if 
there  are  present  a  false  representation,  an  intention  to  in- 
fluence, and  a  reliance  upon  that  representation,  an  estoppel 
arises  against  the  party  making  the  false  representation, 
notwithstanding  he  did  so  through  an  honest  mistake  as  to 
the  facts  of  the  case.4  While  it  is  maintained  by  other 
courts  that  the  representation  must  have  been  made  by  one 
who  either  knew  it  to  be  false,  or  had  no  reasonable  grounds 

1  Odlin  v.  Gove,  41  N.  H.  477;  Hill  v.  Epley,  31  Pa.  St.  334;  MeCune  v. 
McMichael,  29  Ga.  312;  Fletcher  v.  Holmes,  25  Ind.  469;  Ormsby  v.  Ihmsen, 
34  Pa.  St.  472 ;  Jewett  v.  Miller,  10  N.  Y.  406 ;  Gray  v.  Bartlett,  29  Pick.  103 ; 
Ferris  v.  Carver.  10  Cal.  589. 

2  Brown  v.  Bowen,  30  N.  Y.  541 ;  Malloney  v.  Heron,  49  N.  Y.  Ill ;  Han- 
rahan  v.  O'Reilly,  102  Mass.  201 ;  Anderson  v.  Coburn,  27  Wis.  566;  Mahoney 
v.  Van  Winkle,  21  Cal.  583 ;  Carpentier  v.  Thurston,  24  Cal.  283. 

3  Turners.  Coffin,  12  Allen,  401 ;  Andrews  v.  Lyon,  11  Allen,  350;  Plumb 
v.  Cattaraugus  Ins.  Co.,  18  N.  Y.  392;  Brown  v.  Bowen,  30  N.  Y.  541 ;  Rus- 
sell v.  Maloney,  39  Vt.  584;  Calhoun  v.  Richardson,  30  Conn.  210;  Patterson 
v.  Lytle,  11  Pa.  St.  53;  Maple  v.  Kussart,  53  Pa.  St.  352;  Howard  v.  Hudson, 
2  Ell.  &B.  1. 

*  Bigelow  v.  Foss,  59  Me.  162;  Beaupland  v.  McKeen,  28  Pa.  St.  124;  Ma- 
ple v.  Kussart,  53  Pa.  St.  352;  Morris  Canal  v.  Lewis,  12  N.  J.  Eq.  332;  Jew- 
ett v.  Miller,  10  N.  Y.  406  ;  Tilton  v.  Nelson,  27  Barb.  595;  Andrews  v.  Lyon, 
11  Allen,  349;  Blackwood  v.  Jones,  4  Jones  Eq.  56;  MeCune  v.  McMichael, 
29  Ga.  312;  Barnes  v.  McKay,  7  Ind.  301 ;  Snodgrass  v.  Ricketts,  13  Cal.  362. 

549 


§    726  ESTOPPEL.  [PAET   III. 

for  believing  it  to  be  true.1  This  dispute  arises  only  where 
the  representation  concerns  the  title  to  the  land  generally. 
When  the  representation  refers  to  the  boundary  line  between 
two  estates,  the  courts  seemed  to  have  generally  agreed 
upon  the  following  rule  :  Where  the  true  line  was  a  matter 
of  uncertainty  and  dispute,  and  it  could  not,  after  a  diligent 
search,  be  ascertained,  if  the  parties  agree  upon  a  line, 
which  shall  constitute  the  boundary  line,  both  will  there- 
after be  estopped  from  denying  that  the  line  agreed  upon 
was  the  true  line,  although  the  dispute  arose  from  an  honest 
mistake  of  one  or  both  of  the  parties.2  But  if  the  repre- 
sentation was  made  under  an  honest  mistake  of  the  facts  in 
a  case,  where  there  was  no  actual  uncertainty  as  to  the  true 
line,  the  party  making  the  representation  would  not  there- 
after be  precluded  from  setting  up  the  true  line.3  These 
questions,  however,  involve  the  discussion  of  a  great  many 
principles  of  equity,  and  upon  the  application  of  which  the 

courts  are  not  altogether  agreed.     The  foregoing  enuncia- 
te o  ©  © 

tion  of  the  leading  principles  is  as  much  as  can  be  attempted 
in  an  elementary  treatise  on  real  property.  It  is  hardly 
necessary  to  state  that,  in  order  that  an  estoppel  in  pais  may 
perfect  a  title  by  adverse  possession,  the  possession  must 
have  been  acquired  under  an  honest  claim  of  title.     For  an 

1  Davidson  v.  Young,  38  111.  152;  Boggs  v.  Merced  Co.,  14  Cal.  367;  Glid- 
den  v.  Strupler,  52  Pa.  St.  405 ;  Copeland  v.  Copeland,  28  Me.  539 ;  Whit- 
aker  v.  Williams,  20  Conn.  104;  Henshaw  v.  Bissell,  18  Wall.  271. 

2  Adams  v.  Rockwell,  16  Wend.  285;  Dibble  v.  Rogers,  13  Wend.  536; 
Jackson  v.  Ogden,  7  Jobns.  238;  Orr  v.  Hadley,  36  N.  H.  575;  Terry  v. 
Chandler,  16  N.  Y.  355;  Lindsay  v.  Springer,  4  Har.  547;  Chew  v.  Mor- 
ton, 10  Watts,  321 ;  Knowles  v.  Toothaker,  58  Me.  174;  Russell  v.  Maloney, 
39  Vt.  580;  Houston  v.  Sneed,  15  Texas,  307;  Joyce  v.  Williams,  26  Mich. 
332 ;  Blair  v.  Smith,  16  Mo.  279;  Sneed  v.  Osborn,  25  Cal.  624;  Reed  v.  Farr, 
35  N.  Y.  117. 

3  Proprietors,  etc.,  v.  Prescott,  7  Allen,  494 ;  Thayer  v.  Bacon,  3  Allen, 
163;  Baldwin  v.  Brown,  16  N.  Y.  359;  Coon  v.  Smith,  29  N.  Y.  392;  Vos- 
burgh  v.  Teator,  32  N.  Y.  561 ;  Russell  v.  Maloney,  39  Vt.  580.  See  Burdick 
v.  Heinley,  23  Iowa,  515. 

550 


CH.  XX.]  ESTOPPEL.  §    727 

honest  reliance  upon  the  false  representation  in  respect  to 
the  title  is  necessary  to  raise  the  estoppel.  In  perfecting 
titles  by  adverse  possession,  estoppels  are  setup  by  the  de- 
fendant in  defending  the  title  so  acquired  and  perfected. 
But,  if  necessary,  it  may  also  be  set  up  by  the  plaintiff  in 
exercising  the  rights  of  ownership  incident  to  the  title. 

§  727.  Estoppel  by  deed.  —  In  its  relation  to  the  title  of 
lands  an  estoppel  by  deed  arises,  where  there  is  in  the  deed 
an  express  or  implied  representation  that  the  grantor  at  the 
time  of  his  conveyance  was  possessed  of  the  title  which  his 
deed  purports  to  convey.  If  there  is  such  a  representation, 
and  it  is  false,  whether  he  is  committing  a  fraud  or  is  acting 
under  an  honest  mistake,  he  is  estopped  from  denying  that 
he  has  a  title  ;  and  consequently,  if  he  should  afterwards 
acquire  the  title,  he  could  not  by  setting  it  up  defeat  his 
own  grant.1  But  a  grantor  may  disseise  his  grantee,  and 
the  title  by  adverse  possession,  so  acquired,  may  ripen  into 
a  good  title,  which  the  grantor  may  assert.  So  also  may  he 
acquire  a  title  subsequently  in  any  other  manner,  and  assert 
it  against  his  grantee,  provided  it  does  not  negative  the 
validity  of  the  title  which  he  purported  to  convey.2  The 
representation  need  not  be  express;  it  may  be  implied. 
The  common-law  conveyance  by  feoffment  was  itself  an 
implied  representation  that  the  feoffor  had  an  absolute  title 
to  the  estate,  which  was  sufficient  to  bind  any  subsequently 
acquired  title  in  his  hands.8  But  in  all  other  deeds,  and 
particularly  in  deeds  which  take  effect  under  the  Statute  of 

1  Smith  v.  Moodus  Water  Co.,  35  Conn.  400;  Clark  v.  Baker,  14  Cal.  629; 
Fairlittle  v.  Gilbert,  2  T.  K.  181 ;  Jackson  v.  Murray,  12  Johns.  201 ;  Pike  v. 
Galvin,  29  Me.  183;  Doe  v.  Dowdall,  3  Houst.  380;  Denn  v.  Cornell,  Johns. 
174;  Reeder  v.  Craig,  3  McCord,  411;  French  v.  Spencer,  21  How.  228; 
Washabaugh  v.  Entricken,  34  Pa.  St.  74. 

2  Parker  v.  Proprietors,  etc.,  3  Mete.  102;  Stearns  v.  Hendersass,  9  Cush. 
602;  Tilton  v.  Emery,  17  N.  H.  538;  Smith  v.  Montes,  11  Texas,  24;  Moore 
v.  Littel,  41  N.  Y.  97 ;  Hope  v.  Stone,  10  Minn.  152. 

3  3  Washb.  on  Real  Prop.  94. 

551 


§    728  ESTOPPEL.  [part   III. 

Uses,  no  estoppel  can  arise,  unless  the  recitals  or  the  cov- 
enants of  the  deed  expressly  or  impliedly  represent  that 
the  grantor  had  a  good  title  to  the  land  which  he  attempts 
to  convey.  No  estoppel  can  arise  merely  from  the  execu- 
tion and  delivery  of  such  a  deed,  and  the  payment  of  a 
valuable  consideration.1 

§  728.  Estoppel  in  deeds  —  Continued.  —  It  seems,  how- 
ever, in  order  that  a  recital  may  work  an  estoppel,  it  must 
refer  specially  to  some  particular  fact.  General  recitals  do 
not  conclude  the  grantor  from  setting  up  an  after-acquired 
title.2  The  covenants  of  warranty  are  held  to  raise  an 
estoppel  for  the  purpose  of  avoiding  circuity  of  action. 
An  entry  by  the  grantor  under  his  after-acquired  title  would 
be  a  breach  of  the  covenants,  and  instead  of  putting  the 
grantee  to  his  action  on  the  covenants,  the  law  estops  the 
grantor  from  asserting  the  title  in  derogation  of  his  own 
grant.3  But  it  is  not  necessary  that  the  covenant  be  a  gen- 
eral covenant  of  warranty.  A  special  warranty  would  ordi- 
narily be  sufficient.  It  will  operate  as  an  estoppel  to 
the     extent    of    the    liability    thereby   assumed   by    the 

1  3  "Washb.  on  Seal  Prop.  116;  White  v.  Patten,  24  Pic*.  324;  Wright  v 
Shaw,  5  Cush.  56 ;  McCall  v.  Coover,  4  Watts  &  S.  151 ;  Root  v.  Crock,  7 
Barr,  380;  Jackson  v.  Wright,  14  Johns.  193;  Somes  v.  Skinner,  3  Pick.  52; 
Dart  v.  Part,  7  Conn.  250 ;  Brown  v.  Jackson,  3  Wheat.  449 ;  Jackson  v. 
Brinkerhoff,  3  Johns.  101 ;  Kimball  v.  Blaisdell,  5  N.  H.  535;  Bruce  v.  Luke, 
9  Kan.  201 ;  12  Am.  Rep.  491 

2  Huntington  v.  Havens,  5  Johns.  Ch.  23;  Shelley  v.  Wright,  Willes,  9; 
Co.  Lit.  352  b  ;  Morgan  v.  Larned,  10  Mete.  53  ;  Carver  v.  Jackson,  4  Pet.  85; 
Stow  v.  Wyse,  7  Conn.  214;  Scott  v.  Douglass,  7  Ohio,  229;  Douglass  v. 
Scott,  5  Ohio,  194 ;  Hays  v.  Askew,  5  Jones  L.  637 ;  Harney  v.  Morton,  36 
Miss.  411;  Morton  v.  Saunders,  7  J.  J.  Marsh.  14:  Hall  v.  Orvis,  35  Iowa, 
366. 

3  Somes  v.  Skinner,  3  Pick.  52 ;  Oakes  v.  Marcey,  10  Pick.  195 ;  Blanchard 
v.  Ellis,  1  Gray,  195 ;  Dart  v.  Dart,  7  Conn.  256 ;  Cole  v.  Raymond,  9  Gray, 
217;  Jackson  c.  Bradford,  4  Wend.  619;  Irvine  v.  Irvine,  9  Wall.  625; 
Micklesu.  Townsend,  18  N.  Y.  577;  Jackson  v.  Hubble,  1  Cow.  613;  Jackson 
v.  Waldron,  13  Wend.  189;  Bogy  v.  Shoab,  13  Mo.  378. 

552 


CH.  XX.]  ESTOPPEL.  §    729 

grantor.1  In  order  that  a  covenant  may  work  an  estoppel 
it  must  be  contained  in  a  deed  which  is  good  and  valid  in 
law  as  well  as  in  equity.  A  defective  deed  cannot  create 
an  estoppel  by  covenant.2  So  will  no  estoppel  arise  from 
a  deed  with  covenant  of  warranty,  where  the  deed  passes 
an  interest,  upon  which  the  warranty  can  operate,  although 
the  interest  so  passing  is  not  commensurate  with  the  inten- 
tion of  the  parties.3  And  if  the  deed  conveys  "  all  the 
right,  title  and  interest"  of  the  grantor,  instead  of  an  ab- 
solute estate,  the  grantor  will  not  be  estopped  from  setting 
up  an  after-acquired  title,  since  he  did  not  undertake  to 
convey  any  greater  interest  or  better  title  than  he  then  had.* 
And  where  the  deed  is  executed  by  two  or  more  owners  of 
an  estate  in  common,  the  estoppel,  whether  it  is  based  upon 
a  recital  or  a  covenant  of  warranty,  or  both,  only  operates 
upon  the  share  of  each  grantor,  and  does  not  prevent  one 
from  setting  up  a  title  to  the  shares  of  the  other,  which  he 
acquires  subsequently.5 

§  729.  Effect  of  estoppel  upon  the  title.  — Where  the 
estoppel  arises  in  pais  there  seems  to  be  no  doubt  that  it 
has  only  the  effect  of  locking  up  the  adverse  title  in  the 
person  against  whom  the  estoppel  operates,  instead  of  cre- 
ating a  title  in,  or  transferring  the  true  title  to,  the  person 
for  whose  benefit  it  is  brought  into  operation.  It  only  pre- 
cludes the  party  from  setting  up  his  true  title  against  him, 

1  Trull  v.  Eastman,  3  Mete.  121 ;  Blake  v.  Tucker,  12  Vt.  39 ;  Kimball  v. 
Blaisdell,  5  N.  H.  635;  Brundred  v.  Walker,  12  N.  J.  Eq.  140. 

2  Blanchard  v.  Brooks,  12  Pick.  47;  Patterson  v.  Pease,  5  Ohio,  190;  Ker- 
cheval  v.  Triplett,  1  A.  K.  Marsh.  493;  Dougal  v.  Fryer,  3  Mo.  29;  Raymond 
v.  Holden,  2  Cush.  204. 

3  Jackson  v.  Hoffman,  9  Cow.  271 ;  Lewis  v.  Baird,  3  McLean,  56 ;  2  Prest, 
Abst.  216;  4  Kent's  Com.  98. 

4  Mills  v.  Ewing,  6  Cush.  34;  Doane  v.  Wilcutt,  5  Gray,  328;  Raymond  v. 
Raymond,  10  Cush.  134;  Jackson  v.  Peck,  4  Wend.  300;  Pike  v.  Galvin,  29 
Me.  183;  Harrison  v.  Gray,  49  Me.  638;  Wynn  v.  Harman,  6  Gratt,  157; 
Krusman  v.  Loomis,  11  Ohio,  475;  White  v.  Brocaw,  14  Ohio  St.  344. 

6  Trull  v.  Eastman,  3  Mete.  121 ;  Wright  v.  Shaw,  5  Cush.  56. 

553 


§    730  ESTOPPEL.  [PAET   III. 

who  has  been  influenced  by  false  representation.  If  one 
who  has  been  deceived  has  actually  received  no  title  in  any 
other  way,  the  doctrine  of  estoppel  will  only  help  him  in  an 
action  brought  to  recover  the  title  to  which  he  is  entitled. 
If  he  has  a  title  by  adverse  possession  under  a  claim  of 
title,  the  estoppel  will  perfect  it  by  preventing  his  ouster 
under  the  paramount  title  by  those  who  are  affected  by  the 
estoppel.  But  a  difficult  question  arises  in  this  connection, 
where  it  is  an  estoppel  by  deed.  Two  different  theories  pre- 
vail, and  are  supported  by  eminent  authority.  According 
to  one  theory  the  estoppel  by  deed  simply  precludes  the 
grantor  from  setting  up  an  after-acquired  title  in  derogation 
of  his  own  grant.  The  opposing  theory  is  to  the  effect  that 
the  estoppel  actually  passes  the  after-acquired  title  to  the 
grantee  immediately  upon  its  acquisition  by  the  grantor. 
To  use  the  expression  commonly  found  in  these  authorities, 
it  "enures  "  to  the  grantee.  This  latter  theory  is  directly 
opposed  to  the  general  doctrine  of  estoppel,  and  is  believed 
to  be  unfounded. 

§  730.  Effect  of  estoppel  —  Continued.  —  A  large  array 
of  authorities  is  cited  by  Mr.  Eawle  on  Covenants  of 
Title,  and  Mr.  Washburn,1  but  as  Mr.  Bigelow  very  cor- 
rectly states,  in  his  article,2  and  again  in  his  work  on  Es- 
toppel,3 these  authorities  refer  to  the  subject  only  in  general 

1  Eawle,  Cov.  of  Tit.  (4th  ed.)  404 ;  3  Washb.  on  Real  Prop.  109.  The  fol- 
lowing are  the  leading  cases  cited  by  Mr.  Washburn :  Jackson  v.  Stevens, 
13  Johns  316;  Brown  v.  McCormick,  6  "Watts,  60;  Jackson  v.  Matsdorf,  11 
Johns.  91 ;  Somes  v.  Skinner,  3  Pick.  52 ;  Terrett  v.  Taylor,  9  Cranch,  43 ; 
Warkv.  Willard,  13  N.  H.  389;  Comstock  v.  Smith,  13  Pick.  116;  White  o. 
Patten,  24  Pick.  324 ;  Allen  v.  Parish,  3  Ohio,  107 ;  Bond  v.  Swearingen,  1 
Ohio,  190;  Lawry  v.  Williams,  13  Me.  281;  Jackson  v.  Wright,  14  Johns. 
193 ;  Van  Rensselaer  v.  Kearney,  11  How.  322 ;  Goodson  v.  Beacham,  24  Ga. 
150;  Kimball  v.  Schoff,  40  N.  H.  190;  Burton  v.  Reeds,  20  Ind.  93;  Mc- 
Cusker  v.  McEvey,  9  R.  I.  528 ;  Plympton  v.  Converse,  42  Vt  712 ;  Doe  v. 
JDowdall,  3  Houst.  369. 

2  9  Am.  Law  Rev.  252. 

3  Big.  on  Estop.  285-339. 

554 


CH.  XX.]  ESTOPPEL.  §    730 

terms,  and  cannot  be  treated  as  final  and  conclusive.  In 
fact,  in  some  of  the  cases,  the  position  is  assumed  by  the 
reporter  in  the  syllabus,  without  having  anything  in  the  de- 
cision of  the  court,  or  the  facts  of  the  case,  to  warrant  it.1 
According  to  Mr.  Bigelow,  the  error  has  occurred  through 
a  failure  to  distinguish  between  the  effect  of  the  common 
law  conveyances  of  feoffment,  fine,  recovery  and  lease,  and 
that  of  the  deeds  which  take  effect  under  the  Statute  of 
Uses.  He  admits  that  by  these  common-law  conveyances 
the  after  acquired  interest  passed  by  estoppel  to  the  grantee, 
while  he  holds  that  a  different  conclusion  must  be  reached 
in  respect  to  deeds  of  bargain  and  sale,  covenants  to  stand 
seised,  and  lease  and  release.  In  the  leading  case  of  Somes 
v.  Skinner,2  all  the  authorities  relied  upon  concerned  estop- 
pels arising  in  these  common  law  conveyances.  But  it  seems 
to  the  present  writer  that  the  entire  doctrine  is  fallacious, 
whether  it  refers  to  common-law  conveyances,  except  a  lease 
for  a  term  of  years,  or  to  deeds  under  the  Statutes  of  Uses, 
and  it  arises  from  the  false  idea  of  the  courts  that  the  doctrine 
of  enurement  was  necessary,  in  order  to  give  the  grantee 
sufficient  title  to  defend  against  trespassers.3  At  common 
law  no  conveyance  could  be  made  by  one  of  lands  which 
were  in  the  adverse  possession  of  another.4  Where,  there- 
fore, there  was  a  conveyance  made  of  the  lands  —  particu- 
larly if  it  was  a  common-law  conveyance  —  the  grantee  or 
feoffee  acquired  at  least  a  title  by  adverse  possession,  if  his 
grantor  was  not  lawfully  seised.     This  title  by  adverse  pos- 

1  See  particularly,  Jackson  v.  Stevens,  13  Johns.  316 ;  Jackson  v.  Mats- 
dorf,  11  Johns.  91 ;  Terrett  v.  Taylor,  9  Cranch,  43. 

2  3  Pick.  52.. 

3  Blanchard  v.  Ellis,  1  Gray,  195;  Bean  v.  Welsh,  17  Ala.  770.  A  com- 
mon law  lease  for  a  term  of  years  is  an  executory  contract,  until  the  lessee  has 
entered  into  possession.  See  ante,  sect.  174.  The  lessee  may  therefore  sue 
for  possession  at  any  time  during  his  term,  and  may  take  advantage  of  any 
after-acquired  title  of  his  lessor.  But  the  grant  of  a  freehold  operates  eo  in- 
atanti,  and  conveys  the  title  upon  the  delivery  of  the  deed,  or  not  at  all. 

4  See  post,  sect.  795. 

555 


§    730  ESTOPPEL.  [PART   III. 

session  was  good  against  all  the  world  except  the  true  owner.1 
And  if  his  grantor  acquired  the  paramount  title  he  was 
estopped  from  enforcing  it  against  his  grantee.  The  dis- 
tinction between  the  two  theories  only  acquired  importance 
when  the  common-law  rule,  requiring  the  grantor  to  be 
seised,  was  abolished,  and  the  grantor  was  permitted  to 
make  a  legal  conveyance  while  he  was  disseised.  The  ques- 
tion then  for  the  first  time  arose,  whether  the  title,  subse- 
quently acquired  by  one  who  at  the  time  of  his  grant  had 
neither  title  nor  possession,  so  far  passed  by  estoppel  to  the 
grantee  as  to  permit  him  to  maintain  an  action  of  ejectment 
against  one,  who  holds  in  adverse  possession  to  both  him  and 
his  grantee.  That  a  man  acquires  nothing  by  a  deed  from 
one,  who  has  neither  title  nor  possession,  needs  no  authority.2 
The  after-acquired  title  must  enure  or  pass  to  the  grantee, 
instead  of  being  shut  up  in  the  hands  of  the  grantor,  in 
order  that  the  grantee  may  maintain  ejectment  against  a 
disseisor.3  The  better  opinion  is  that  no  title  passes  by 
estoppel  to  the  grantee.  If  he  has  acquired  none  by  force 
of  his  grant,  i.e.,  if  he  has  not  acquired  a  title  by  adverse 
possession  he  does  not  gain  one  by  estoppel.4  In  some  of 
the  States,  to  supply  this  deficiency,  statutes  have  been  en- 
acted, which  cause  after  acquired  titles  to  pass  instanter 
from  the  grantor  to  the  grantee.5     In  the  absence  of  the 

1  See  ante,  sects.  692,  693. 

2  Tyl.  on  Adv.  Pos.  542. 

3  See  Jackson  v.  Bradford,  4  "Wend.  619;  3  Prest.  Abst.  25;  Wivel's  Case, 
Hob.  45 ;  Wright  v.  Wright,  1  Ves.  sr.  391 ;  Somes  v.  Skinner,  3  Pick.  52,  80 ; 
Bivins  v.  Vinzant,  15  Ga.  521  ;  Way  v.  Arnold,  18  Ga.  350;  Jacocks  ?»  Gil- 
liam, 3  Murph.  47  ;  s.  c,  4  Hawks,  310,  to  the  effect  that  such  a  grantee  could 
not  maintain  an  action  of  ejectment  in  his  own  name  against  the  disseisor. 

4  Gibson  v.  Chouteau,  39  Mo.  566;  Valle  v.  Clemei  s,  18  Mo.  486;  Bogy  v. 
Shoab,  13  Mo.  379;  Bush  v.  Marshall,  6  How.  288;  Van  Bensselaer  v.  Kear- 
ney, 11  How.  322;  Cocke  v.  Brogan,  5  Ack.  699;  Frink  v.  Darst,  14  111.  308; 
Clark  v.Baker,  14  Cal.  612;  Buckingham  v.  Harm,  2  Ohio  St  c51 ;  Bivins 
v.  Vinzant,  15  Ga.  521;  Jackson  v.  Bradford,  4  Wend.  619;  Wright  v. 
Wright,  1  Ves.  sr.  391.    See  Keeder  v.  Craig,  3  MeCord,  411. 

5  Bogy  v.  Shoab,  13  Mo.  379;  Mo.  Rev.  Stat.  (1879),  sect.  3949;  Frink  ». 
Darst,  14  111.  308 ;  Cocke  v.  Brogan,  5  Ark.  699 ;  Clark  v.  Baker,  14  Cal.  612. 

556 


CH.  XX.]  ESTOPPEL.  §    731 

statute  the  title  remains  in  the  grantor,  but  he  is  precluded 
from  setting  it  up.  Neither  is  the  grantee  obliged  to  take 
advantage  of  the  title  subsequently  acquired.  He  may  bring 
his  actions  for  the  breach  of  the  covenants  if  he  has  been 
evicted.1  It  would  seem  that  if  the  title  actually  enured  to 
the  grantee,  his  dispossession  by  his  grantor,  under  the  claim 
of  a  paramount  title,  could  not  be  treated  as  a  breach  of  the 
covenant  of  warranty.  It  would  be  a  simple  act  of  trespass. 
And  in  cases  where  by  estoppel  one  acquires  a  right  to  the 
title  of  lands  subsequently  acquired,  a  court  of  equity  will 
always  grant  a  decree  for  further  assurance,  so  as  to  protect 
the  grantee's  title  against  the  acquisition  of  the  paramount 
title  by  an  innocent  purchaser  without  notice  of  the  estoppel. 

§  731 .  Estoppel  binding-  upon  whom.  —  An  estoppel  will 
not  only  bind  the  party  who  makes  the  false  representation, 
but  also  all  those  who  are  in  privity  with  him,  whether  the 
privity  is  of  estate,  of  contract,  or  by  blood.  A  stranger 
can  neither  take  advantage  of  an  estoppel,  nor  be  bound  by 
it.2  Nor  can  any  one  enforce  an  estoppel,  except  the  person 
to  whom  the  representation  was  made,  or  who  was  intended 
to  be  influenced,  and  those  who  stand  in  privity  with  him, 
and  claim  under  him.  But  where  the  privies  of  the  grantor, 
who  is  estopped,  are  subsequent  purchasers  for  value,  they 
are  only  estopped  where  they  have  a  notice  of  the  estoppel, 
whether  that  estoppel  arises  in  pais  or  by  deed.3  If  the  sub- 
sequent purchaser  of  an  after-acquired  title  has  received  no 
notice  of  the  prior  deed,  the  estate  in  his  hands  is  freed  from 

Blanchard  v.  Ellis,  1  Gray,  195 ;  Tucker  v.  Clarke,  2  Sandf.  Ch.  96 ;  Bing- 
ham v.  Weiderwax,  1  N.  Y.  509 ;  Burton  v.  Reed,  20Ind.  87  ;  Woods  v.  North, 
6  Humph.  309 ;  Noonan  v.  Isley,  21  Wis.  139.  Contra,  King  v.  Gelson,  32  HL 
348;  Reese  v.  Smith,  12  Mo.  344. 

2  Wivel's  Case,  Hob.  45 ;  Wright  v.  Wright,  1  Ves.  sr.  391 ;  Somes  v.  Skin- 
ner, 3  Pick.  52;  Jacocks  v.  Gilliam,  3  Murph.  47;  s.  c,  4  Hawks,  310;  Doe  v. 
Dowdall,  3  Houst.  369 ;  Bivins  v.  Vinzant,  15  Ga.  521 ;  Way  v.  Arnold,  18  Ga. 
350;  Douglass  v.  Scott,  5  Ohio,  197;  Maple  v.  Kussart,  63  Pa.  St.  351. 

3  Carpenter  v.  Buller,  8  Mees.  &  W.  212 ;  3  Washb.  on  Real  Prop.  91. 

557, 


§    731  ESTOPPEL.  [PART    III. 

the  estoppel.1  But  it  is  a  doubtful  question  whether  the 
registration  of  the  prior  deed,  before  the  title  had  been  ac- 
quired by  the  grantor  and  recorded,  would  properly  be  con- 
sidered constructive  notice  of  the  estoppel.  It  is  certainly 
in  violation  of  the  spirit  of  the  registration  laws  which  only 
require  the  investigator  to  search  the  records  for  any  incum- 
brance or  conveyance  which  occurs  between  the  time  when 
the  grantor  acquired  the  title,  and  the  time  when  he  offers 
the  title  for  conveyance.2  But  in  order  that  one  may  be 
bound  by  an  estoppel,  he  must  have  the  capacity  to  make  a 
valid  deed.  .  Infants  and  married  women  cannot  be  bound 
by  estoppel.3 

1  Duchess  of  Kingston's  Case,  2  Smith's  Ld.  Cas.  720 ;  Shaw  w.Beebe,  35  Vt. 
204;  Jarvis  v.  Aikens,  25  Vt.  635;  Great  Falls  Co.  v.  Worcester,  15  N.  H. 
452 ;  Thistie  v.  Buford,  50  Mo.  278 ;  Bivins  v.  Vinzant,  15  Ga.  521 ;  Rawle 
Cov.  Tit.  427. 

2  Calder  v.  Chapman,  2  P.  F.  Smith,  359 ;  McCusker  v.  McEvey,  10  R.  I. 
606  ;  dissenting  opinion  of  Judge  Potter;  Great  Falls  Co.  v.  Worcester,  15  N. 
H.  452 ;  Bivins  v.  Vinzant,  15  Ga.  521 ;  Gouchenour  v.  Howry,  33  111.  331. 

3  Raymond  v.  Holden,  2  Cush.  264 ;  Concord  Bk.  v.  Bellis,  10  Cush.  276; 
Toddu.  Kerr,  42  Barb.  317;  Lowell  v.  Daniels,  2  Gray,  16i;  Brown  v.  Mc- 
Cune,  5  Sandf.  224;  Morrison  v.  Wilson,  13  Cal.  494;  Lackman  v.  Wood,  25 
Cal.  153;  Williams  v.  Baker,  71  Pa.  St.  482. 

558 


SECTION  VI. 


ABANDONMENT. 


Section  739.  Effect  of  abandonment  generally. 

740.  Abandonment  of  title  by  adverse  possession. 

741.  Surrender  of  deed. 

§  739.  Effect  of  abandonment  generally.  — It  has  been 
supposed,  that  a  title  to  real  property  may  be  lost  by 
abandonment  by  the  owner,  and  such  would  seem  to  have 
been  the  opinion  of  the  United  States  Circuit  Court  of 
Ohio.1  Easements  and  other  incorporeal  hereditaments 
may  be  lost  by  abandonment,  as  has  been  explained.2  So 
also  may  all  equitable  and  executory  rights  to  or  in  the 
title.3  But  wherever  abandonment  can  take  effect,  it  sim- 
ply destroj^s  the  title,  and  does  not  vest  it  in  another.  A 
bargain  to  give  up  an  equitable  claim  may  work  an  aban- 
donment, but  the  bargainee  acquires  no  title  by  the  bargain. 
But  no  legal  title  of  a  corporeal  hereditament  may  be  lost 
or  destroyed  by  any  act  of  abandonmei.t,  with  a  possible 
exception  to  be  mentioned  in  the  next  section.  A  legal 
title,  properly  vested,  can  only  be  divested  by  abandonment, 
when  the  circumstances  of  the  case  are  sufficient  to  raise  an 
estoppel,  or  where  the  possession  is  acquired  by  one  incon- 
sequence of  the  abandonment,  and  held  by  him  under  claim 
of  title  for  the  period  of  limitation.  The  title,  although 
not  lost  by  abandonment,  would  be  barred  by  estoppel  or 

1  Holmes  v.  Bailroad,  8  Am.  Law  Reg.  716. 

a  See  ante,  sect.  G05. 

3  Picket  v.  Dowdall,  2  Wash.  197;  Dikes  v.  Miller,  24  Texas,  424;  Barker 
v.  Salmon,  12  Mete.  3'2  ;  Sumner  v.  Stevens,  b"  Mete.  337 ;  Booker  v.  Stivender, 
13  Rich.  Eq.  85 ;  Kirk  v.  King,  3  Pa.  St.  441. 

559 


§    740  ABANDONMENT.  [PART    III. 

by  the  Statute  of  Limitations.1  The  voluntary  abandon- 
ment would  not  prevent  the  possession  of  another  from 
becoming  adverse  to  the  real  owner,  though  the  abandon- 
ment was  expressly  made  for  his  benefit  and  to  him.  But 
where  the  abandonment  is  not  accompanied  by  the  circum- 
stances of  estoppel  or  limitation,  no  matter  how  formal  the 
abandonment  was,  if  it  fell  short  of  a  legal  deed  of  convey- 
ance, it  has  no  effect  whatsoever  upon  the  legal  title.  The 
owner  may  afterwards  re-enter  and  eject  any  one  who  may 
have  entered  into  possession  in  reliance  upon  the  abandon- 
ment. 

§  740.  Abandonment  of  title  by  adverse  possession.  — 

There  can  be  no  doubt  that,  as  long  as  the  title  by  adverse 
possession  is  not  made  absolute  by  the  operation  of  the 
Statute  of  Limitations,  it  may  be  lost  or  destroyed  by  aban- 
donment. It  is  an  invariable  requirement  that  the  posses- 
sion must  be  continued  and  uninterrupted,  in  order  that  the 
title  of  the  real  owner  may  be  barred  by  the  statute. *  But 
where  the  statutory  period  has  elapsed,  and  the  title  of  the 
true  owner  is  barred,  it  becomes  a  question  of  considerable 
doubt,  whether  a  subsequent  abandonment  would  destroy 
the  title  by  adverse  possession  which  has  then  become  per- 
fected by  the  operation  of  the  statute.  The  Supreme  Courts 
of  Georgia  and  Massachusetts  have  held  that  such  an  aban- 
donment would  be  taken  as  conclusive  proof  of  the  fact  that 
the  possession  had  not  been  adverse,  and  would  remove  the 
bar  of  the  statute.3  A  contrary  opinion  has  been  reached 
by  the  Supreme  Court  of  Maine.4     The  solution  of  the  ques- 

1  Jackson  v.  Bowen,  1  Caines,  358 ;  Adams  v.  Rockwell,  16  Wend.  307 ; 
Tolman  v.  Sparhawk,  5  Mete.  476 ;  Barker  v.  Salmon,  2  Mete.  32 ;  Sumner  v. 
Stevens,  6  Mete.  327 ;  Gregg  v.  Blackmore,  10  Watts,  192 ;  Allen  v.  Parish, 
3  Ohio,  107. 

2  See  ante,  sect.  714. 

3  Vickery  v.  Benson,  26  G-a.  589 ;  Church  v.  Burghart,  8  Pick.  327. 
*  School  District  v.  Benson,  31  Me.  381. 

560 


CH.  XX.]  ABANDONMENT.  §    741 

tion  depends  upon  the  proper  theory  in  regard  to  the  effect 
of  the  Statute  of  Limitations.  If  the  statute  simply  takes 
away  the  rightful  owner's  remedies  for  the  recovery  of 
seisin  and  possession,  and  leaves  the  barren  right  or  title 
still  subsisting  in  him,  then  if  he  recovers  the  seisin  by  the 
consent  of  the  disseisor,  having  then  both  the  seisin  and  the 
lawful  title,  it  would  seem  that  the  title  by  adverse  posses- 
sion and  limitation  would  be  destroyed  by  the  abandonment. 
But  if  the  statute  goes  farther,  and  either  transfers  the 
lawful  title  of  the  real  owner  or  destroys  it  completely,  then 
the  abandonment  would  have  no  more  effect  in  this  case 
than  it  would  upon  any  other  title.  The  possession  acquired 
by  the  rightful  owner  in  such  a  case  would  only  give  him  a 
title  by  adverse  possession,  which  can  only  be  made  absolute 
by  estoppel  or  by  limitation. 

§  741.  Surrender  of  deed. — It  has,  however,  been  held 
in  a  number  of  cases  that  if  a  deed  is  delivered  up  by  the 
grantee,  and  destroyed,  the  title  revests  in  the  grantor,  if 
the  deed  has  not  been  recorded.  And  the  ground  upon 
which  the  courts  rest  this  decision  is  that,  having  voluntarily 
destroyed  this  primary  evidence  of  title,  the  grantee  will  not 
be  permitted  to  introduce  parol  evidence  to  establish  the 
contents  of  the  deed.1  But  the  mere  cancellation  and  return 
of  the  deed  will  not  be  sufficient  to  revest  the  title  in  the 
grantor.2     An    effective    abandonment   would    only    result 

*  Commonwealth  v.  Dudley,  10  Mass.  403;  Holbrook  v.  Tirrell,  9  Pick. 
105;  Lawrence  v.  Stratton,  6  Cush.  163;  Howe  v.  Wilder,  11  Gray,  267; 
Patterson  v.  Yeaton,  47  Me.  314 ;  Parker  v.  Kane,  22  How.  1 ;  Dodge  v. 
Dodge,  33  N.  H.  487 ;  Sawyer  v.  Peters,  50  N.  H.  143 ;  Howard  v.  Huffman, 

3  Head,  564;  Blake  v.  Fash,  44  111.  305;  Speer  v.  Speer,  7  Ind.  178;  Thomp- 
son v.  Thompson,  9  Ind.  328 ;  Blaney  v.  Hanks,  14  Iowa,  400 ;  Baker  v.  Kane, 

4  Wis.  12. 

2  Lawrence  v.  Stratton,  6  Cush.  163;  Conway  v.  Deerfield,  11  Mass.  332; 
Wilson  v.  Hill,  13  N.  J.  Eq.  143 ;  Gilbert  v.  Bulkley,  5  Conn.  262  ;  Holmes  v. 
Trout,  7  Pet.  171;  Hall  v.  McDuff,  24  Me.  312;  Fonda  v.  Sage,  46  Barb. 
122;  Fawcett  v.  Kinney,  33  Ala.  264;  Howard  v.  Huffman,  3  Head,  562; 
Kearsing  v.  Kilian,  18  Cal.  491. 

30  561 


§    741  ABANDONMENT.  [PART    III. 

therefrom  where  the  circumstances  give  rise  to  an  estoppel, 
as  where  an  innocent  purchaser  is  induced  to  accept  a  deed 
from  the  grantor,1  or  where  all  the  muniments  of  title  have 
been  voluntarily  destroyed  and  the  grantee  has  to  resort  to 
parol  evidence  to  prove  his  title.  A  recorded  deed  cannot, 
therefore,  be  surrendered  in  this  way.  A  surrender  can 
only  be  made  to  the  grantor,  and  nothing  short  of  cancella- 
tion or  destruction  of  the  deed  would  have  the  effect  of 
passing  the  title  back  to  him.2 

1  Commonwealth  v.  Dudley,  10  Mass.  403 ;  Holbrook  v.  Tirrell,  9  Pick.  105 ; 
Trull  v.  Skinner,.  17  Pick.  213 ;  Patterson  v.  Teaton,  47  Me.  314. 

2  Howe  v.  Wilder,  11  Gray,  267;  Bank  v.  Eastman,  44*  N.  H.  778;  Blaney 
v.  Hanks,  14  Iowa,  400 ;  Parker  ».  Kane,  4  Wis.  12 ;  22  How.  1. 

562 


CHAPTER    XXI. 

TITLE    BY    GRANT. 

Section      I.  Title  by  public  grant. 

II.    Title  by  involuntary  alienation. 
III.    Title  by  private  grant. 

SECTION  I. 

TITLE    BY   PUBLIC    GRANT. 

Section  744.  Public  lands. 

745.  Forms  of  public  grant. 

746.  The  relative  value  of  the  patent  and  certificate  of  entry. 

747.  Pre-emption. 

§  744.  Public  lands.  — As  has  been  explained  in  a  pre- 
ceding section,  all  lands  not  held  as  the  private  property  of 
individuals  are  vested  in  the  State  or  United  States.  In  the 
original  thirteen  States  all  such  lands  belong  to  the  State, 
while  in  all  the  others  which  were  subsequently  admitted 
into  the  Union,  except  Texas,  the  public  lands,  except  those 
given  by  compromise  to  certain  States,  are  the  property  of 
the  United  States.1  These  lands  of  the  general  government 
have  been  by  official  survey  divided  into  townships  and  sec- 
tions, and  the  latter  again  sub-divided  into  fractions  of  a 
section,  halves,  quarters  and  eighths.  And  in  making  a 
grant  or  conveyance  of  these  lands,  reference  is  made  to  the 
township,  section,  and  fraction  of  a  section,  as  a  sufficient 
description  of  the  tract  conveyed.2     The  conveyance,  by 

1  3  Washb.  on  Real  Prop.  182-184;  Terrett  v.  Taylor,  9  Cranch,  60; 
Worcester  v.  Georgia,  6  Pet.  543;  Johnson  v.  Mcintosh,  8  Wheat.  543. 

2  3  Washb.  on  Real  Prop.  185;  Walk.  Am.  Law,  42,  43. 

563 


§    744  TITLE    BY    PUBLIC    GRANT.  [PART    III. 

which  the  title  to  public  lands  is  transferred  by  the  govern- 
ment to  private  individuals,  is  called  a  public  grant.  Al- 
though particular  reference  is  made  in  this  connection  to  the 
public  lands  held  by  the  general  government,  the  general 
principles  here  explained  are  equally  applicable  to  lands  be- 
longing to  the  State  government.  In  respect  to  the  public 
lands  of  the  United  States,  it  must  be  understood  that  al- 
though the  law  of  the  State  in  which  the  land  lies  governs 
the  rights  of  property  in  it,  when  it  is  the  property  of  a 
private  individual,1  until  a  grant  of  such  land  has  been  made 
by  the  government,  and  even  in  construction  of  the  validity 
of  the  grant,  the  law  of  the  United  States  is  paramount. 
Until  conveyance  by  the  government  the  lands  are  not  sub- 
jected to  State  control.2  Another  rule  of  construction  may 
be  mentioned  here  which  has  a  general  application  to  the 
subject  under  consideration.  It  is,  that  in  question  of  prop- 
erty rights  arising  between  the  State  and  individual  the 
construction  is  always  most  favorable  to  the  State,  whereas 
a  grant  from  one  individual  to  another  is  construed  most 
favorably  to  the  grantee.3  But  it  seems  that  where  the 
grant  by  the  State  is  for  a  valuable  consideration  this  rule 
of  construction  does  not  apply,  unless  the  ambiguity  arising 
on  the  face  of  the  grant  is  absolutely  inexplicable.4     Never- 

1  United  States  v.  Crosby,  7  Cranch,  115;  Kerr  v.  Moon,  9  Wheat.  565; 
Darby  v.  Mayer,  10  "Wheat.  465 ;  Cutler  v.  Davenport,  1  Pick.  81 ;  Calloway 
v.  Doe,  1  Blackf.  372;  Nims  v.  Palmer,  6  Cal.  8. 

2  Irvine  v.  Marshall,  20  How.  558;  Bagnell  v.  Broderick,  13  Pet.  436;  Wil- 
cox v.  Jackson,  13  Pet.  516 ;  Pratt  v.  Brown,  3  Wis.  603 ;  Cannon  v.  White, 
16  La.  An.  89.  In  California  it  has  been  held  that  the  United  States  hold  the 
public  lands  in  that  State  on  the  same  terms  and  with  the  same  incidents  of 
ownership  as  any  other  private  proprietor,  except  taxation ;  and  that  they  can 
only  exercise  their  rights  in  the  mines  in  subordination  to  the  general  laws  on 
that  subject  of  California.     Boggs  v.  Merced  Co.,  14  Cal.  375,,  ..-— - 

3  Dubuque  R.  R.  v.  Litchfield,  23  How.  88 :  Mayor,  etc.,  v.  Ohio  &  P.  R.  R., 
26  Pa.  St.  355;  Townsend  v.  Brown,  24  N.  J.  L.  80;  Green's  Estate,  4Md.  CL. 
349 ;  Hagan  v.  Campbell,  8  Port.  9. 

*  Martin  v.  Waddell,  16  Pet.  41  i  ;  Charles  River  Bridge  v.  Warren  Bridge 
11  Pet.  589;  Commonwealth  v.  R..xDur< ,  -j  Gray,  492;  Hyman  v.  Read,  1$ 
Cal.  444. 

564 


CH.  XXI.]  TITLE    BY    PUBLIC    GRANT.  §     745 

theless,  if  the  State  grants  an  estate  upon  condition,  the 
breach  of  the  condition  will  at  once  divest  the  title  without 
the  necessity  of  an  entry.1  The  State  is  not  subject  to 
estoppel  under  a  covenant  of  warranty  ;  it  is  estopped  only 
by  the  description  contained  in  a  valid  grant.2 

§  745.  Forms  of  public  grant. — The  grant  is  not  re- 
quired to  assume  any  particular  form.  It  may  be  made  by 
special  act  of  Congress,  or  by  deed  made  in  pursuance  of 
some  general  act.  But  the  public  lands  of  the  United  States 
can  only  be  disposed  of  by  authority  of  Congress,  expressed 
in  a  special  or  general  act.3  Congress  has  passed  general 
laws  providing  for  the  sale  of  public  lands.  These  laws 
provide  for  the  establishment  of  land  offices  in  the  Western 
and  other  States  where  the  general  government  still  owns 
large  tracts  of  land,  and  the  would-be  purchaser  is  required 
to  make  his  negotiations  with  the  registers  and  receivers  of 
these  offices.  The  purchaser  enters  upon  the  records  of  the 
office  a  full  and  complete  description  of  the  land  he  desires 
to  purchase,  and  having  paid  the  purchase-money,  he  re- 
ceives from  the  register  a  certificate  of  entry,  as  it  is  called, 
which  entitles  him  to  a  patent,  which  is  the  formal  deed  of 
conveyance  required  by  the  general  laws  for  the  transfer  of 
the  legal  title.  The  patent  is  signed  by  the  President,  or 
by  one  authorized  to  affix  his  signature,  and  sealed  with  the 
seal  of  the  United  States.4 

1  Kennedy  v.  McCartney,  4  Port.  141. 

2  Mayor,  etc.,  v.  Ohio  &  P.  R.  R.,  26  Pa.  St.  355;  Elmendorf  v.  Carmichael, 
3  Litt.  472;  State  v.  Crutchfield,  3  Head,  113. 

3  Lorrimer  v.  Lewis,  1  Morris  (Iowa),  253;  Pratt  v.  Brown,  3  Wis.  603; 
Challefoux  v.  Ducharme,  8  Wis.  306;  Foley  v.  Harrison,  5  La.  An.  75;  Freed- 
man  v.  Goodwin,  1  McAll.  Ch.  142;  Terrett  v.  Taylor,  9  Cranch,  50;  Chou- 
teau v.  Eckhart,  2  How.  372;  Wilkinson  v.  Leland,  2  Pet.  662;  Strother  v. 
Lucas,  12  Pet.  454. 

*  3  Washb.  on  Real  Prop.  185 ;  People  v.  Livingston,  8  Barb.  253 ;  Doe  u. 
Mcllvaine,  14  Ga.  252;  Hulick  v.  Scovil,  9  111.  174.  Once  the  patent  has  been 
legally  executed  and  delivered  it  cannot  bo  revoked.  Fletcher  v.  Peck,  6 
Cranch,  87;  Grignon  v.  Astor,  2  How.  319;  Sargent  v.  Simpson,  8  Me.  148; 
Doe  v.  Beardsley,  2  McLean,  412;  Stockton  v.  Williams,  1  Dougl   (Mich.)  646. 

565 


§   746  titlp:  bv  public  grant.  [part  hi. 

§  746.  The  relative  value  of  the  patent  and  certificate  of 
entry.  — According  to  some  of  the  cases  arising  in  the  State 
courts,  the  certificate  of  entry  vests  an  inchoate  or  imper- 
fect legal  title  in  the  vendee,  which  will  enable  him  to  main- 
tain ejectment  or  trespass  against  a  trespasser,  and  that  the 
patent  is  merely  the  perfection  of  the  imperfect  legal  title 
already  acquired,  by  providing  the  strongest  kind  of  evi- 
dence of  the  previous  grant.1  But  the  United  States  courts 
maintain  that  the  purchaser  only  acquires  an  equitable  title, 
which  is  not  sufficient  to  support  legal  actions  in  defence  of 
the  land,  but  which  is  sufficient  to  vest  in  him  an  absolute 
right  to  the  patent.  Once  a  certificate  of  entry  has  been 
lawfully  issued,  the  same  land  cannot  be  subsequently 
sold.2  This  distinction  between  a  patent  and  a  certifi- 
cate of  entry  is  so  well  and  generally  recognized  that 
where  a  patent  has  been  issued  to  one  person,  and  another 
is  entitled  to  the  patent  by  virtue  of  the  prior  entry  and 
certificate,  the  patentee,  nevertheless,  holds  the  absolute 
legal  title  until  the  patent  has  been  avoided  by  a  direct  pro- 
ceeding brought  for  that  purpose  by  the  government,  or  by 
the  rightful  owner  in  its  name.  The  patent  in  collateral 
proceedings  is  conclusive  evidence  of  title,  and  cannot  then 
be  questioned,  unless  it   be  void  uuon  its  face.3     But  the 

1  Sims  v.  Irvine,  3  Dall.  456;  Morton  v.  Blankenship,  5  Mo.  346;  Carman 
v.  Johnson,  29  Mo.  94;  Jackson  v.  Wilcox,  2  111.  344;  Forbes  v.  Hall,  34  HI. 
167;  McDowell  v.  Morgan,  28  111.  532;  Cavender  i;.  Smith,  5  Iowa,  189;  s.  c, 
8  Iowa,  349;  Bullock  v.  Wilson,  2  Port.  436;  Goodlet  v.  Smithson,  5 
Port.  243;  Jennings  v.  Whitaker,  4  B.  Mon.  50;  Waterman  v.  Smith,  13  Cal. 
419.  See  also  Copley  v.  Riddle,  2  Wash.  C.  Ct.  354;  Sweatt  v.  Corcoran,  37 
Miss.  516 ;  Dickinson  v.  Brown,  9  Smed.  &  M.  130. 

2  Fenn  v.  Holme,  21  How.  481 ;  Bagnell  v.  Broderick,  13  Pet.  436;  Lindsey 
r.  Miller,  6  Pet.  666;  Fletcher  v.  Peck,  6  Cranch,  87;  Mayor  v.  DeArmas,  9 
Pet.  223;  Stockton  v.  Williams,  1  Dougl.  (Mich.)  560;  Waller  v.  Von  Phul, 
14  M".  84;  Carman  v.  Johnson,  20  Mo.  108;  Nelson  v.  Sims,  23  Miss.  383; 
Mover  v.  McCullough,  1  Ind.  339;  Astrom  v.  Hammond,  3  McLean,  107;  Mix 
v.  Smith,  7  Pa.  St.  75;  West  v.  Hughes,  1  Harr.  &  J.  6;  Cavender  v.  Smith, 
5  Iowa,  189. 

3  Bagnell  v.  Broderick,  13  Pet.  436;  Steiner  v.  Coxe,  4  Pa.  St.  28;  Griffith 
v.  Deerfelt,  17  Mo.  31 ;  Hill  v.  Miller,  36  Mo.  182;  Gallipot  v.  Manlove,  2  HL 

566 


CH.  XXI.]  TITLE    BY   PUBLIC    GRANT.  §    746 

courts  all  agree  that  the  certificate  of  entry  vests  in  the 
purchaser  sufficient  title,  whether  legal  or  equitable,  so  that 
it  can  be  aliened  or  devised ;  and  upon  the  death  of  the 
purchaser  before  the  issue  of  the  patent  it  descends  to  his 
heirs;  and  the  purchaser's  alienee,  devisee  and  heirs,  re- 
spectively, are  entitled  to  the  patent,  in  the  place  of  the 
person  to  whom  the  certificate  has  been  given.1  But  where 
the  purchaser  has  died  the  patent  must  be  made  out  in  the 
name  of  the  heirs.  A  patent  issued  in  the  name  of  a  pur- 
chaser, in  pursuance  of  a  certificate  of  entry,  but  after  the 
death  of  the  purchaser,  is  void,  and  the  heirs  cannot  take 
advantage  of  it.2  And  where  a  purchaser  has  assigned  his 
certificate,  and  takes  out  a  patent  in  his  own  name,  he  will 
hold  the  legal  title  thus  acquired  in  trust  for  his  assignee, 
and  he  can  be  required  to  make  the  proper  conveyances.8 
In  all  cases,  in  order  to  entitle  one  to  a  patent,  the  land 
must  be  clearly  described  in  the  certificate  of  entry,  so  as  to 
enable  an  easy  identification  of  the  land.  An  inaccurate  or 
obscure  description  would  bar  the  right  to  a  patent.4 

156;  Goodlet  v.  Smithson,  5  Port.  243;  Stringer  v.  Young,  3  Pet.  320;  Board- 
man  v.  Reed,  6  Pet.  328  ;  Curie  v.  Barrell,  2  Sneed,  68  ;  Willot  v.  Sandford,  19 
How.  79;  Moore  v.  "Wilkinson,  13  Cal.  478.  See  Brush  v.  "Ware,  15  Pet.  98; 
Sweatt  v.  Corcoran,  37  Miss.  516;  Harris  v.  McKissack,  34  Miss.  464;  Dickin- 
son v.Brown,  9  Smed.  &M.  130;  Leblanc  v.  Ludrique,  14  La.  An.  772;  Maxcy 
v.  O'Connor,  23  Texas,  238. 

1  Gait  v.  Galloway,  4  Pet.  332 ;  Brush  v.  "Ware,  15  Pet.  93 ;  Reeder  v.  Barr, 
4  Ohio,  458 ;  Adams  v.  Logan,  6  B.  Mon.  175 ;  Shanks  v.  Lucas,  4  Blackf.  476 ; 
Goodlet  v.  Smithson,  5  Port.  243 ;  Wright  v.  Swan,  6  Port.  84 ;  Cavender  v. 
Smith,  8  Iowa,  360;  Forsythe  v.  Ballance,  6  McLean,  562. 

2  Galloway  v.  Finley,  12  Pet.  264;  Blankenpickler  v.  Anderson's  Heirs,  16 
Gratt.  59;  Price  v.  Johnston,  1  Ohio  St.  390;  "Wood  v.  Ferguson,  7  Ohio  St. 
288 ;  Phillips  v.  Sherman,  36  Ala.  189.  Contra,  Schedda  v.  Sawyer,  4  McLean, 
181.  See  Thomas  v.  Wyatt,  25  Mo.  24 ;  Thomas  v.  Boerner,  25  Mo.  27.  But 
by  the  act  of  Congress  of  1836,  if  the  patent  is  issued  to  a  deceased  person,  in 
ignorance  of  his  death,  it  will  enure  to  the  benefit  of  his  heirs.  Phillips  v. 
Sherman,  36  Ala.  189 ;  Stubblefield  v.  Boggs,  2  Ohio  St.  216. 

8  Trimble  v.  Boothby,    14  Ohio,  109;  Hayward  v.  Ormsbee,   11  "Wis.  3; 
Moore  v.  Maxwell,  18  Ark.  469 ;  Hennen  v.  Wood,  16  La.  An.  263. 
*  Lafayette  v.  Blanc,  11  How.  104;  Ledoux  v.  Black,  18  How.  473. 

567 


§    747  TITLE    BY   PUBLIC    GRANT.  [PART    III. 

§  747.  Pre-emption.  —  In  order  to  encourage  immigra- 
tion and  the  actual  settlement  upon  public  lands,  the  acts  of 
Congress  from  an  early  day  have  provided  that  where  one 
actually  settles  upon  public  lands,  and  makes  entry  upon 
the  records  of  the  land  office  of  his  claim,  with  accurate 
description  of  the  land  upon  which  he  has  settled,  he  ac- 
quires thereby  the  so-called  "pre-emption"  right,  which 
entitles  him  to  a  patent  to  the  land  so  occupied  at  the  min- 
imum price  fixed  by  law  for  the  sale  of  public  lands,  and 
gives  him  a  superior  claim  to  a  patent  over  all  other  persons 
who  may  acquire  interests  in  the  same  land.1  One  cannot 
claim  the  pre-emption  right  to  more  than  one  quarter  sec- 
tion, or  160  acres.2  But  no  one  can  claim  pre-emption  to 
lands  which  have  been  set  apart  as  a  reservation,  or  to  lands 
which  are  situated  within  the  limits  of  a  town  or  city,  or 
those  on  which  persons  have  actually  settled  for  the  purpose 
of  carrying  on  any  business  or  trade,  other  than  agriculture, 
or  on  which  there  are  known  salt  or  other  mines.3  And  in 
order  to  entitle  one  to  pre-emption,  he  must  make  oath  that 
he  does  not  own  320  acres  of  land  in  any  State  or  Territory, 
and  that  he  has  not  abandoned  a  residence  on  his  own  land 
within  the  same  State  or  Territory,  in  order  to  reside  upon 
the  public  lands.4  By  the  entry  in  the  land  office,  and 
actual  settlement  upon  the  land,  only  an  inchoate  title  is 
acquired.  To  perfect  it,  and  obtain  an  absolute  legal 
title,  payment  of  the  purchase-money  must  be  made  within 
thirty  months  after  the  entry.5  This  inchoate  title  de- 
scends to  the  heirs  of  the  pre-emptor.6     But  it  cannot  be 

1  3  Washb.  on  Real  Prop.  200 ;  IT.  S.  Rev.  Stat.,  sects.  2256,  2257 ;  United 
States  v.  Fitzgerald,  15  Pet.  407 ;  Craig  v.  Tappin,  2  Sandf.  Ch.  78 ;  McAfee 
v.  Keirn,  7  Smed.  &M.780;  Pettigrew  v.  Shirley,  9  Mo.  683;  Brown  v.  Throck- 
morton, 11  111.  529. 

2  U.  S.  Rev.  Stat.,  sect.  2259. 

3  U.  S.  Rev.  Stat.,  sect.  2258. 

*  U.  S.  Rev.  Stat.,  sects.  2260,  2262. 

*  U.  S.  Rev.  Stat,  sect.  2267. 

«  Hunt  v.  Wickliffe,  2  Pet.  201 ;  Johnson  v.  Collins,  12  Ala.  322. 
568 


CH.  XXI.]  TITLE   BY  PUBLIC   GRANT.  §    747 

assigned  so  as  to  give  the  assignee  a  right  to  the  pre-emp- 
tion, as  against  the  government,  or  one  claiming  under 
a  patent.1  But  where  the  pre-emptor  has  undertaken  to> 
convey  before  he  has  acquired  the  legal  title,  he  will  take 
the  patent  as  trustee  for  the  assignee,  and  the  latter  will 
acquire  the  benefit  of  it  by  instituting  the  proper  proceed- 
ings.2 In  like  manner,  creditors  cannot  levy  upon  the  pre- 
emption right.3  Very  often  conflicting  claims  arise  under 
the  exercise  of  the  pre-emption  right,  growing  out  of  defi- 
cient locations  and  entries  ;  and  it  is  provided  by  the  acts  of 
Congress  that  these  disputes  shall  be  settled  by  the  land 
commissioners  and  registers.  In  the  settlement  of  these 
disputes,  the  commissioners  act  in  a  judicial  capacity,  and 
their  decisions  are  subject  to  appeal  to  the  higher  authori- 
ties, but  otherwise  they  are  final  and  conclusive,  unless 
tainted  with  fraud.4 

1  U.  S.  Kev.  Stat.,  sect.  2263 ;  Craig  v.  Tappin,  2  Sandf.  Ch.  78 ;  Lytle  v 
Arkansas,  9  How.  333 ;  Cunningham  v.  Ashley's  Heirs,  14  How.  377 ;  Bar- 
nard's Heirs  v.  Ashley's  Heirs,  18  How.  44;  Myers  v.  Croft,  13  Wall.  291; 
Brown  v.  Throckmorton,  11  111.  529 ;  Frisbie  v.  "Whitney,  9  Wall.  187 ;  Hutch- 
ings  v.  Low,  15  Wall.  77  ;  Phelps  v.  Kellogg,  15  111.  131. 

2  Camp  v.  Smith,  2  Minn.  155;  Delaunay  v.  Burnett,  9  111.  454. 
5  Rodgers  v.  Rawlins,  8  Port.  326. 

*  See  Barnard's  Heirs  v.  Ashley's  Heirs,  18  How.  43;  Garland  v.  Wynn,  20- 
How.  6 ;  Irvine  v.  Marshall,  20  How.  558 ;  Tate  v.  Carney,  24  How.  357 ; 
O'Brien  v.  Perry,  1  Black,  132 ;  Lindsey  v.  Hawes,  2  Black,  654 ;  State  v. 
Batchelder,  1  Wall.  109. 

569 


SECTION  H. 

TITLE  BY  INVOLUNTARY   ALIENATION. 

Section  751.  Title  by  involuntary  alienation,  what  ia? 

752.  Scope  of  legislative  authority. 

753.  Eminent  domain. 

754.  Persons  under  disability . 

755.  Confirming  defective  titles. 

756.  Sales  by  administrators  and  executors. 

757.  Sales  under  execution. 

758.  Sales  by  decree  of  chancery. 

759.  Tax-titles. 

760.  Validity  of  tax- title. 

761.  Judicial  rules  for  delinquent  taxes. 

§  751.   Title    by    involuntary    alienation,  what  is? — . 

Under  the  head  of  title  by  involuntary  alienation  are  included 
all  the  modes  of  transferring  one  man's  title  to  lands  to 
another,  against  his  will  or  without  his  co-operation.  Cir- 
cumstances often  arise,  when  such  alienation  is  necessary 
to  attain  the  ends  of  justice.  The  kinds  of  involuntary 
alienation  are  so  numerous,  and  they  are  so  largely  regu- 
lated by  varying  local  statutes  that  in  so  limited  a  work  as 
the  present  it  will  be  impossible  to  do  more  than  give  a 
general  outline  and  classification  of  these  modes  of  convey- 
ance, and  present  the  salient  features  of  each. 

§  752.  Scope  of  legislative  authority. — Except  the 
power,  which  the  court  of  chancery  possesses  in  certain 
cases,  and  which  will  be  explained  in  the  proper  place,  the 
power  to  effect  an  involuntary  alienation  rests  upon  legisla- 
tive enactment.  As  a  general  proposition,  the  Legislature 
cannot  divest  one  of  his  vested  rights  against  his  will.  It 
•can  enact  laws  for  the  control  of  property  and  of  its  dispo- 
570 


CH.  XXI.]       TITLE    BY    INVOLUNTARY   ALIENATION.  §    752 

sition,  but  it  cannot  take  the  private  property  of  one  man 
and  give  it  to  another.1  But  there  are  certain  well-known 
exceptions  to  this  general  rule,  where  the  interference  of 
the  Legislature  is  necessary  to  save  and  protect  the  substan- 
tial interests  of  individuals  on  account  of  their  own  inability 
to  do  so,  or  to  promote  the  public  good.  In  some  of  the 
State  Constitutions  there  is  a  provision  against  the  enactment 
of  special  laws  operating  upon  particular  individuals  or 
upon  their  property.  In  those  States,  therefore,  involun- 
tary alienation  can  only  be  effected  by  a  general  law,  appli- 
cable to  all  persons  under  like  circumstances.  But  in  the 
absence  of  such  a  constitutional  provision,  the  transfer  of 
lands  may  be  made  by  special  act  of  the  Legislature,  as  well 
as  under  a  general  law.2  But  wherever  such  a  transfer  by 
special  act  of  the  Legislature  would  involve  the  assumption 
of  judicial  power,  it  would  be  generally  held  void,  under 
the  common  constitutional  provision  which  denies  to  the 
Legislature  the  exercise  of  such  powers.3  The  cases  in  which 
the  Legislature  may  provide  for  involuntary  alienation  may 
be  divided  into  the  following  six  general  classes  :  1.  In  the 
exercise  of  the  right  of  eminent  domain.  2.  In  the  case  of 
persons  under  disability  to  protect  their  interests  by  sale 
and  investment.  3.  For  confirming  defective  titles.  4. 
Sales  by  administrators  and  executors.  5.  Sales  under  ex- 
ecution. 6.  Sales  to  satisfy  the  claim  of  the  State  for 
taxes. 

1  Wilkinson  v.  Leland,  2  Pet,  658 ;  Adams  v.  Palmer,  51  Me.  494 ;  Com- 
monwealth v.  Alger,  7  Cush.  53 ;  Variek  v.  Smith,  5  Paige,  159 ;  Matter  of 
Albany  Street,  11  Wend.  149;  John  and  Cherry  Street,  19  Wend.  676;  Taylor 
v.  Porter,  4  Hill,  147;  Heyward  v.  Mayor,  7  N.  Y.  324;  Bowman  v.  Middle- 
ton,  1  Bay,  252 ;  Russell  v.  Rumsey,  35  111.  374  ;  Good  v.  Zercher,  12  Ohio,  368 ; 
Deutzel  v.  Waldie,  30  Cal.  144. 

2  Sohier  v.  Mass.  Gen.  Hospital,  3  Cush.  483  ;  Kibby  v.  Chitwood,  4  B.  Mon 
95 ;  Edwards  v.  Pope,  4  111.  473. 

3  Rice  v.  Parkman,  16  Mass.  326 ;  Jones  v.  Perry,  10  Yerg.  59 ;  Lane  v.  Dor- 
man,  4  111.  238 ;  Edwards  v.  Pope,  4  111.  473. 

571 


§    753  TITLE   BY   INVOLUNTARY  ALIENATION.       [PAET   III. 

§  753.  Eminent  domain. — As  already  explained  in  the 
second  chapter,  all  real  property  is  held  subject  to  the  exer- 
cise of  the  right  of  eminent  domain.  Whenever  it  is  nee- 
essary  or  beneficial  to  the  public  that  certain  lands  shall  be 
appropriated  for  public  use,  the  State  through  the  Legislature 
has  the  right  to  confiscate  such  land  upon  payment  of  a 
proper  compensation  therefor  to  the  owner  of  the  land.1 
The  State  may  exercise  the  right,  or  it  may  authorize  a  cor- 
poration of  a  public  character,  such  as  railroads,  turnpike 
companies,  etc.,  to  exercise  it.2  But  the  corporation  must 
be  one  in  whose  maintenance  the  public  is  interested,  and 
from  whose  existence  the  public  is  to  derive  a  benefit.  The 
State  cannot  authorize  a  private  individual  or  a  strictly 
private  corporation  to  take  the  lands  of  another  with  or 
without  compensation.3 

1  Haskell  v.  New  Bedford,  108  Mass.  214;  Commonwealth  v.  Alger,  7  Cush. 
92 ;  Clarke  v.  Rochester,  24  Barb.  481 ;  Taylor  v.  Porter,  4  Hill,  143 ;  Hey- 
ward  o.  Mayor,  7  N.  Y.  324 ;  Buffalo  R.  R.  v.  Brainard,  9  N.  Y.  108 ;  Carson, 
v.  Coleman,  11  N.  J.  Eq.  108;  Moale  v.  Baltimore,  5  Md.  314;  Commission- 
ers, etc.,  v.  Withers,  29  Miss.  21;  Chicago  v.  Larned,  34  111.  276;  Peoples. 
Salem,  20  Mich.  479. 

2  Cushman  v.  Smith,  34  Me.  247;  Hooker  v.  N.  H.  &  N.  Co.,  14  Conn.  146; 
Bloodgood  v.  Mohawk  &  H.  R.  R.,  18  Wend.  9 ;  Buffalo  R.  R.  v.  Brainard,  9 
N.  Y.  108;  Matter  of  Townsend,  39  N.  Y.  171 ;  Burt  v.  Merchants'  Ins.  Co., 
106  Mass.  356;.  Orr  v.  Quimby,  54  N.  H.  590;  Reddall  v.  Bryan,  14  Md.  444; 
Gilmer  v.  Lime  Point,  18  Cal.  229. 

"~~3  Wilkinson  v.  Leland,  2  Pet.  658;  Adams  v.  Palmer,  51  Me.  494;  Com- 
monwealth v.  Alger,  7  Cush.  53;  Flagg  v.  Plagg,  16  Gray,  180;  Powers  v. 
Bergen,  6  N.  Y.  358;  Varick  v.  Smith,  5  Paige,  159;  Heyward  v.  Mayor,  7  N. 
Y.  324;  Taylor  v.  Porter,  4  Hill,  147 ;  People  v.  Mayor,  4  N.  Y.  422 ;  Wild  v. 
Dei"-,  43  Ind.  455 ;  13  Am.  Rep.  404 ;  Gillan  v.  Hutchinson,  16  Cal.  156.  Since 
it  is  not  imposed  upon  the  State  as  a  public  duty  to  erect  and  maintain  light- 
houses it  cannot  appropriate  lands  for  such  a  purpose ;  but  the  United  State* 
may  do  so,  and  the  only  power  the  State  has  is  to  cede  jurisdiction  to  the 
United  States  over  the  land  thus  taken.  Burt  v.  Merchants'  Ins.  Co.,  106 
Mass.  360;  People  v.  Humphrey,  23  Mioh.  471.  In  like  manner  the  State 
may  grant  to  the  United  States  the  authority  to  appropriate  lands  for  the  erec- 
tion of  post-offices  and  other  public  buildings.  Burt  v.  Merchants'  Ins.  Co., 
108  Mass.  356;  Orr  v.  Quimby,  54  N.  H.  590;  Reddall  v.  Bryan,  14  Md.  444; 
Gilmer  v.  Lime  Point,  18  Cal.  229. 

572 


CH.  XXI.]       TITLE    BY    INVOLUNTARY   ALIENATION.  §    755 

§  754.  Persons  under  disability. — Where  persons  are 
under  a  legal  disability  which  prevents  them  from  making 
a  valid  sale  of  their  property,  and  such  sale  and  reinvest- 
ment of  the  proceeds  of  sale  are  necessary  for  the  conserva- 
tion of  their  interests,  the  State,  in  the  capacity  of  parens 
patrice,  has  the  power  to  authorize  a  sale  by  the  guardians 
of  such  persons.  This  may  be  done  by  special  act  or  by  a 
general  law.1  The  property  of  persons  who  are  not  under 
a  disability  cannot  be  sold  by  authority  of  the  courts,  on 
the  ground  that  such  a  sale  would  be  beneficial.2  In  most 
of  the  States  there  are  general  laws  authorizing  the  courts 
to  empower  the  guardians  of  minors,  lunatics,  and  other 
persons  under  disability,  to  make  sale  of  the  real  property 
of  such  persons.  Generally  the  sales  are  made  under  special 
orders  of  the  court,  and  in  making  the  conveyance  the 
deed  should  contain  recitals  of  all  the  preliminary  proceed- 
ings, which  are  necessary  to  the  effectual  transfer  of  the 
title ;  but  these  recitals  are  not  absolutely  necessary,  pro- 
vided the  deed  shows  on  its  face  in  what  capacitv  the  grantor 
executes  the  deed.3 

§  755.  Confirming  defective  titles.  —  Generally,  when 
a  title  is  defective  through  some  informality  in  the  execution 
of  the  conveyance,  upon  a  proper  case  being  made  out,  the 
court  of  equity  will  afford  an  ample  remedy  by  decreeing  a 
reformation  of  the  instrument.4     But  cases  do  arise  where, 

1  Sohier  v.  Mass.  Gen.  Hospital,  16  Mass.  326 ;  s.  c,  3  Cush.  483 ;  Davidson 
v.  Johonnot,  7  Mete.  395;  Cochran  v.  Van  Surlay,  20  "Wend.  365;  Estep  v. 
Hutchman,  14  Serg.  &  R.  435;  Doe  v.  Douglass,  8  Blackf.  10;  Kibby  v.  Chit- 
wood,  4  B.  Mon.  95 ;  Shehan  v.  Barnett,  6  B.  Mon.  594 ;  Jones  v.  Perry,  10 
Yerg.  59.' 

2  "Wilkinson  v.  Leland,  2  Pet.  658 ;  Adams  v.  Palmer,  51  Me.  494 ;  Sohier 
v.  Mass.  Gen.  Hospital,  3  Cush.  483;  Heyward  v.  Mayor,  7  N.  Y.324;  Ervine's 
Appeal,  16  Pa.  St.  256 ;  Palairit's  Appeal,  67  Pa.  St.  479. 

3  3  Washb.  on  Real  Prop.  210,  211. 

*  Adams  v.  Stevens,  49  Me.  362;  Brown  v.  Lamphear,  35  Vt.  260;  Andrews 
v.  Spurr,  8  Allen,  416 ;  Metcalf  v,  Putnam,  9  Allen,  97  •  Conedy  v.  Marcy,  13 

573 


§    756  TITLE    BY    INVOLUNTARY    ALIENATION.       [PART    III. 

through  the  absence  or  death  of  the  parties,  or  through  a 
want  of  knowledge  as  to  who  they  are,  it  is  impossible  to 
obtain  a  reformation  in  chancery,  and  even  in  cases  where 
the  equitable  remedy  is  only  troublesome  and  inconvenient, 
and  the  defect  is  only  an  informality,  which  does  not  go  to 
the  essence  of  the  conveyance,  and  which  does  not  create 
any  doubt  as  to  the  intention  to  make  a  valid  conveyance, 
the  power  of  the  Legislature  to  interfere  and  cure  the  defect 
by  special  act  has  generally  been  sustained  b}T  the  courts  of 
those  States,  where  special  acts  are  not  inhibited  by  the  Con- 
stitution. Thus  the  defective  certificate  of  a  wife's  acknowl- 
edgment has  been  perfected  by  special  act.1 

§  756.  Sales  of  administrators  and  executors.  —  Where 
one  dies  without  having  made  provisions  for  such  contin- 
gencies, it  is  often  necessary  that  some  one  should  be  au- 
thorized to  make  a  sale  of  the  lands,  for  the  purpose  of  making 
an  effective  administration,  and  to  protect  and  satisfy  the 
claims  of  those  who  are  interested  in  the  property.  If  the 
deceased  leaves  a  will  he  very  often,  perhaps  generally,  em- 
powers the  executor  to  make  sale  of  the  land.  Where  the 
executor  has  this  testamentary  power,  his  sales  are  presumed 
to  be  under  this  power,  and  there  is  no  need  of  a  resort  to 
the  statutory  power.2  But  these  express  testamentary 
powers  are  supplemented  by  statutes,  which  authorize  courts 
of  probate  to  order  a  sale  of  the  decedent's  lands  by  the 

Gray,  373;  Prescott  v.  Hawkins,  16  N.  H.  122;  Caldwell  v.  Fulton,  SI  Pa.  St. 
484;  Keene's  Appeal,  64  Pa.  St.  274;  Mills  v.  Lockwood,  42  111.  Ill ;  Gray  t>. 
Hornbeck,  31  Mo.  400. 

i  Wilkinson  v.  Leland,  2  Pet.  627 ;  s.  c,  10  Pet  294 ;  Watson  t\  Mercer,  8 
Pet.  88;  Kearney  v.  Taylor,  15  How.  494;  Adams  v.  Palmer,  51  Me.  494; 
Sohier  v.  Mass.  Gen.  Hospital,  3  Clash.  483 ;  Chestnut  v.  Shane's  Lessee,  16 
Ohio,  599.  See  Florentine  v.  Barton,  2  Wall,  210;  Bott  v.  Perley,  11  Mass. 
169;  Jones  v.  Perry,  10  Yerg.  59;  Lane  v.  Dorman,  4111.  238.  But  a  defective 
tax-title  cannot  be  made  good  by  legislative  enactment.  Conway  v.  Cable,  37 
111.  82. 

2  Payne  v.  Payne,  18  Cal.  291 ;  White  v.  Moses,  21  Cal.  44. 
"  574 


CH.  XXI.]       TITLE   BY   INVOLUNTARY   ALIENATION.  §    757 

administrator  or  executor,  whenever  necessary  to  the  full 
performance  of  his  duties.  Thus,  if  the  personal  property 
is  not  sufficient  to  satisfy  all  the  debts,  the  administrator  or 
executor  may,  under  order  of  the  court,  make  a  valid  sale 
of  the  lands,  and  the  proceeds  of  the  sale  will  constitute  in 
his  hands  a  trust  fund,  out  of  which  the  claims  of  the  cred- 
itors must  be  satisfied.1  A  sale  may  be  authorized  by  special 
act  of  the  Legislature,  as  well  as  by  order  of  the  court  under 
a  general  law.2  In  all  these  cases  the  deeds  of  conveyance- 
should  contain  recitals  of  the  compliance  with  all  the  re- 
quirements of  the  statute  as  to  the  preliminary  proceedingsy 
although  perhaps  such  recitals  are  not  absolutely  necessary 
to  the  validity  of  the  conveyance,  if  the  authority  of  the 
grantor  to  make  the  conveyance  appears  otherwise  on  the 
face  of  the  deed.3 

§  757.  Sales  under  execution.  —  By  the  early  common 
law  lands  were  inalienable  for  any  purpose,  and  they  could 
not  in  consequence  be  sold  to  pay  the  debts  of  the  owner. 
But  as  trade  and  commerce  increased,  it  became  necessary 
that  the  creditors  should  be  provided  with  means  for  satis- 
fying their  claims  by  compulsory  process  against  the  debtor's- 
property.  In  compliance  with  the  popular  demand,  the 
statutes  merchant  and  statutes  staple  were  passed,  which 
created  in  the  creditors  an  estate  in  the  debtor's  lands,, 
whereby  he  was  enabled  to  enter  into  possession  and  satisfy 
himself  out  of  the  rents  and  profits.4     These  statutes  have 

1  3  Washb.  on  Real  Prop.  209. 

*  Wilkinson  v.  Leland,  2  Pet.  627 ;  Watkins  v.  Holman,  1G  Pet.  69 ;  Sohier 
v.  Trinity  Church,  109  Mass.  1 ;  Langdon-y.  Strong,  2  Vt.234;  Kibby  v.  Chit- 
wood,  4  B.  Mon.  95 ;  Shehan  v.  Barnett,  6  B.  Mon.  594. 

*  Campbell  v.  Knights,  2G  Me.  224 ;  Doolittle  v.  Holton,  28  Vt.  819 ;  Kings- 
bury v.  Wild,  3  N.  H.  30;  Griswold  v.  Billow,  6  Conn.  258;  Sheldon  v. 
Wright,  6N.  Y.  497;  Worthy  v.  Johnson,  8  Ga.  236;  Longworth  v.  Bank  of 
United  States,  6  Ohio,  536;  Jarvis  v.  Russick,  12  Mo.  63;  Planters'  Bk.  v. 
Johnson,  7  Smed.  &  M.  449;  Jones  v.  Taylor,  7  Texas,  240-  White  v.  Moses,. 
21  Cal.  44. 

*  2  Bla.  Com.  161,  162. 

575 


§    757  TITLE    BY   INVOLUNTARY  ALIENATION.       [PART    III. 

been  abolished  in  England,  where  they  have  been  superseded 
by  the  writ  of  elegit,  which  bears  such  a  close  resemblance 
to  the  American  statutes  of  execution  that  a  separate  dis- 
cussion of  its  principles  will  not  be  necessary.  In  all  the 
American  States  there  are  statutes  which  provide  that  when 
a  creditor  obtains  judgment  against  his  debtor,  he  may  cause 
a  writ  of  execution  to  be  issued  against  the  property  of  the 
debtor,  under  which  the  sheriff  is  authorized  to  make  sale 
of  the  real  property,  and  to  execute  the  proper  deeds  of 
conveyance.  The  interest  which  the  creditor  acquires  in 
his  debtor's  lands  under  the  execution  is  so  far  a  vested 
interest,  that  he  has  been  held  entitled  to  the  crops  growing 
on  the  land,  and  to  the  fixtures  attached  thereto,  and  he 
may  restrain  the  removal  of  either.1  And  Mr.  Washburn 
calls  such  interests  estates  by  execution.2  But  they  are  of  so 
ephemeral  a  character  that  it  was  not  considered  necessary 
to  discuss  them  in  an  independent  chapter.  If  these  inter- 
ests can  be  called  estates,  they  are  a  species  of  estate  upon 
condition,  which  is  defeated  by  the  satisfaction  of  the  judg- 
ment and  made  absolute  by  sheriff's  sale.  Where  the 
property  has  been  sold  under  execution  to  a  stranger  he 
acquires  an  absolutely  indefeasible  title,  if  all  the  require- 
ments of  the  statute  have  been  complied  with.  And  where 
the  judgment,  on  which  the  execution  was  issued,  has  been 
reversed  on  appeal,  his  title  remains  unaffected  by  such 
reversal.3  Where  the  purchaser  is  a  party  to  the  judgment 
and  the  suit  under  it,  a  subsequent  reversal  would  defeat  his 
title,  since  he  cannot  be  called  a  subsequent  purchaser  with- 

1  Coolidge  v.  Melvin,  42  N.  H.  537 ;  Evans  v.  Roberts,  5B.&C.  829 ;  Pen- 
hallow  v.  Dwight,  7  Mass.  34;  Goddard  v.  Chase,  7  Mass.  432;  Heard  v.  Fair- 
banks, 5  Mete.  Ill ;  Whipple  v.  Foot,  2  Johns.  423 ;  Pattison's  Appeal,  61  Pa. 
St.  297  ;  Farrar  v.  Chauffetete,  5  Denio,  527. 

2  2  Washb.  on  Real  Prop.  29. 

3  Feger  v.  Keefer,  6  Watts,  297 ;  Taylor  v.  Boyd,  3  Ohio,  337 ;  Gray  r. 
Brignordello,  1  Wall.  627;  Parker  v.  Anderson,  5  B.  Mon.  445.  Contra, 
Delano  v.  Wilde,  11  Gray,  17. 

576 


CH.  XXI.]       TITLE    BY    INVOLUNTARY   ALIENATION.  §    758 

out  notice.  And  in  all  cases  of  reversal  of  the  judgment, 
where  the  purchaser  acquires  an  indefeasible  title,  the  debtor 
may  have  his  action  for  damages  against  the  judgment  cred- 
itor for  the  injury  sustained  by  the  sale  of  the  premises.1 
In  order  to  further  protect  the  creditor,  it  is  provided  by 
most  of  the  State  statutes  that  the  judgment,  when  properly 
docketed,  creates  a  lien  upon  all  the  debtor's  real  property, 
which  attaches  to,  and  binds,  the  land  into  whosesoever 
hands  it  may  come.  The  judgment  lien  enables  the  creditor 
to  sell  the  land  under  execution,  although  it  has  been  con- 
veyed away  by  him  to  a  purchaser  for  value.  But  to  make 
a  valid  conveyance  in  the  case  of  a  sale  under  execution, 
the  requirements  of  the  statute  must  all  have  been  complied 
with,  and  usually,  as  in  the  case  of  sales  by  administrators 
and  guardians,  the  deed  should  contain  recitals  of  the  pro- 
ceedings taken.2 

§  758.  Sales  by  decree  of  chancery.  —  The  cases  are 
numerous  in  which  the  court  of  chancery  has  the  power  to 
decree  a  sale  and  conveyance,  most  of  which  have  been 
already  incidentally  mentioned,  such  as  the  decree  of  sale 
in  the  foreclosure  of  a  mortgage,  in  the  enforcement  of  an 
equitable  lien,  or  in  making  an  involuntary  partition  of  joint 
estates,  and  the  like.     Chancery  has  also  the  power  to  sub- 

1  2  Washb.  on  Real  Prop.  29 ;  Stinson  v.  Ross,  51  Me.  557. 

2  Jackson  v.  Roberts,  11  Wend.  425 ;  Weyand  v.  Tipton,  5  Serg.  &  R.  332 ; 
Doe  W.Bedford,  10  Ired.  198;  Den  v.  Wheeler,  11  lred.288;  Waret>.  Bradford, 
■1  Ala.  676 ;  Minor  v.  President  of  Natchez,  4  Smed.  &  M.  602 ;  Dunn  v.  Meri- 
wether, 1  A.  K.  Marsh.  158.  The  return  of  the  sheriff  of  his  proceedings  in 
making  the  levy  is  conclusive  evidence  of  the  facts  there  stated  in  respect  to  the 
levy  between  the  debtor  and  creditor  and  all  other  persons  claiming  under 
them.  Bott  v.  Burnell,  11  Mass.  163  ;  Whitaker  v.  Sumner,  7  Pick.  551.  And 
the  recitals  of  the  deed  cannot  be  contradicted  as  to  the  power  or  order  of 
sale,  under  which  the  sale  was  made,  by  showing  that  it  was  made  under  some 
other  power  or  order.  Jackson  v.  Croy,  12  Johns.  427;  Jackson  v.  Vander- 
heyden,  17  Johns.  167;  Jackson  v.  Roberts,  11  Wend.  425;  Snyder  v.  Snyder, 
6  Binn.  489.  See  Ware  v.  Bradford,  2  Ala.  676  ;  Minor  v.  President  of  Natchez, 
4  Smed.  &  M.  602. 

s:  577 


§    758  TITLE    BY    INVOLUNTARY   ALIENATION.        [PART    III. 

ject  equitable  estates  to  the  claims  of  creditors  by  the  insti- 
tution of  a  suit  called  the  creditors'  bill.  But  all  these 
subjects  belong  more  properly  to  a  treatise  on  equity  juris- 
prudence than  to  one  on  real  property,  and  it  is  intended  to 
make  here  only  casual  mention  of  them.  In  all  these  cases, 
originally,  the  court  in  its  decree  ordered  the  holder  of  the 
legal  title  or  owner  of  the  land  to  make  the  proper  deeds  of 
conveyance,  upon  pain  of  being  punished  for  contempt  of 
court.  If  the  individual  was  obstinate,  or  beyond  the  ju- 
risdiction of  the  court,  the  court  was  powerless  to  effect  a 
conveyance.  A  decree  ordering  a  conveyance  did  not  and 
could  not  pass  the  title.1  But  now  courts  of  equity  gener- 
ally possess  the  power  to  authorize  some  officer  of  the  court, 
usually  the  master,  to  execute  the  necessary  deeds  of  con- 
veyance, and  such  deeds  will  be  as  effectual  in  passing  an 
indefeasible  title  as  the  sheriff's  deed  under  execution.2 
Like  the  sheriff's  deed,  if  an  appeal  has  been  taken  from 
the  decree,  and  during  the  pendency  of  the  appeal  the  prop- 
erty has  been  sold  and  conveyed  to  a  stranger,  the  title 
which  he  thereby  acquires  will  not  be  affected  by  the  sub- 
sequent reversal  of  the  decree.  But  if  the  purchaser  is  a 
party  to  the  suit,  his  title  will  fail,  because  he  is  not  a  pur- 
chaser without  notice.3  Like  other  modes  of  involuntary 
alienation,  the  master's  deed  under  an  equitable  decree  of 
sale  must  show  the  proceedings  taken  and  the  authority  for 
making  the  sale,  although  recitals  of  these  matters  do  not 
seem  to  be  absolutely  necessary  to  the  validity  of  the  con- 
veyance.4 

1  Ryder  v.  Innerarity,  4  Stew.  &  P.  14 ;  Mummy  v.  Johnston,  3  A.  K.  Marsh. 
220;  Sheppard  v.  Comm'rs  of  Ross  Co.,  7  Ohio,  271. 

2  3  Washb.  on  Real  Prop.  219. 

3  Galpin  v.  Page,  18  Wall.  350;  Jackson  v.  Cadwell,  1  Cow.  641 ;  Taylor  v. 
Boyd,  3  Ohio,  337 ;  Gott  v.  Powell,  41  Mo.  416 ;  McJilton  v.  Love,  13  111.  495 ; 
Reynolds  v.  Harris,  14  Cal.  667. 

*  Atkins  v.  Kinnan,  20  Wend.  241 ;  Wood  v.  Mann,  3  Sumn.  318  ;  Hamil- 
ton v.  Crosbv,  32  Conn.  347 ;  Tooley  v.  Kane,  1  Smed.  &  M.  Ch.  518. 
578 


CH.  XXI.]       TITLE    BY    INVOLUNTARY    ALIENATION.  §    759 

§  759.  Tax-titles.  — The  power  of  taxation  is  an  essential 
incident  to  government ;  without  it  the  maintenance  of  gov- 
ernment is  impossible.  Although  the  power  of  taxation 
generally  cannot  properly  be  considered  of  feudal  origin, 
yet  in  its  application  to  real  property  it  assumes  a  decidedly 
feudal  character.  If  the  power  to  tax  real  property  rested 
solely  upon  the  obligations  of  citizenship,  as  most  of  the 
authorities  seem  to  hold,1  then  it  could  only  be  levied  upon 
those  proprietors  of  lands  who  were  citizens.  As  a  matter 
of  fact,  all  lands  situated  within  the  jurisdiction  of  the 
government  which  levies  the  tax  are  taxed  for  their  pro- 
portionate share.  The  levying  of  a  tax  upon  land,  and  the 
enforcement  of  the  levy,  are  proceedings  in  rem  against  the 
land,  and  not  in  personam  against  the  proprietors.2  But 
whatever  may  be  the  proper  theory  in  respect  to  the  char- 
acter and  the  authority  of  taxation,  the  government  has  not 
only  the  right  to  levy  the  taxes  necessary  for  the  support 
of  the  government,  but  also  to  provide  means  for  enforcing 
the  levy.  In  respect  to  the  collection  of  taxes  assessed 
against  real  property,  with  which  alone  we  are  here  con- 
cerned, all  the  States  have  statutory  provisions,  authorizing 
certain  officers  of  the  government,  after  the  lapse  of  the 
proper  time,  and  by  instituting  the  prescribed  preliminary 
proceedings,  such  as  listing  and  advertising  the  lands,  to 
sell  the  lands,  upon  which  the  taxes  have  not  been  paid,  to 
the  highest  bidder,  usually  at  public  sale,  and  to  appropri- 
ate the  proceeds  of  sale,  or  so   much   thereof    as  may   be 

1  Providence  Bk.  v.  Billings,  4  Pet.  501 ;  McCulloch  v.  Maryland,  4  Wheat. 
428 ;  Opinions  of  Judges,  58  Me.  591 ;  People  v.  Mayor,  etc.,  4  N.  Y.  422 ; 
Clarke  v.  Rochester,  24  Barb.  482 ;  Phila.  Ass'n,  etc.,  v.  Wood,  39  Pa.  St.  73 ; 
Moale  v.  Baltimore,  5  Md.  314;  Doe  v.  Deavors,  11  Ga.  79;  Chicago  v. Larned, 
34  111.  279;  Davison  v.  Ramsay  Co.,  18  Minn.  482. 

2  Cooley  on  Tax.  360.  In  some  of  the  States,  however,  a  distinction  is 
made  by  statute  between  resident  and  non-resident  lands,  as  they  are  called, 
imposing  a  personal  liability  upon  the  owners  of  the  resident  lands.  Cooley 
on  Tax.  278,  279. 

579 


§    760  TITLE    BY    INVOLUNTARY   ALIENATION,       [PART    III. 

necessary  to  the  payment  of  the  taxes  due  and  the  expenses 
incurred  in  the  sale.  The  requirements  of  the  statutes,  in 
order  to  make  a  valid  sale  of  lands  for  unpaid  taxes,  are  in 
some  States  very  minute,  and  they  vary  in  detail  in  every 
State.  It  will  be  impossible  here  to  refer  to  the  details  of  the 
statutes,  or  of  the  decisions  upon  them.  A  discussion  of 
them  would  in  itself  constitute  a  volume  of  respectable 
size.  The  reader  is  therefore  referred  to  the  statutes  of 
his  own  State  and  the  decisions  upon  them  for  a  careful 
study  of  the  law  upon  tax-titles.  So  difficult  is  it  to  fulfil 
all  the  requirements  of  the  law  in  respect  to  the  tax-titles, 
that  the  investigator  of  titles  always  looks  with  suspicion 
upon  a  title  which  depends  upon  a  tax-deed.  And  the  Su- 
perior Court  of  New  Hampshire  is  said  to  have  declared 
"  that  a  tax-collector's  deed  was,  prima  facie,  void."  * 

§  760.  Validity  of  a  tax-title. — But  notwithstanding  the 
dubious  estimation  in  which  a  tax-deed  is  held,  if  all  the 
requirements  of  the  law  as  to  the  preliminary  proceedings 
have  been  complied  with,  the  tax-deed  conveys  an  absolute 
title,  and  the  purchaser  cannot  be  divested  of  it,  although 
he  may  have  paid  for  it  a  sum  altogether  disproportionate 
to  the  real  value  of  the  land.2  How  far  it  is  necessary  to 
observe  all  the  minute  requirements  of  the  statute,  in  order 
to  make  a  valid  sale  of  delinquent  lands,  is  not  clearly  set- 
tled by  the  courts.  Although  some  of  the  decisions  seem 
to  go  to  the  length  of  requiring  a  strict  and  literal  compli- 
ance with  all  the  provisions  of  the  statute,  yet  the  better 
opinion,  which  seems  to  be  more  in  consonance  with  the 
general  drift  of  authority,  is  that  a  substantial  though  strict 
compliance  with  those  provisions  of  the  statute  which  are 
intended  for  the  protection  of  the  delinquent  proprietor,  is 
all  that  is  necessary;   and  that  a  failure  to  follow  the  statu- 

1  3  Washb.  on  Real  Prop.  225. 

2  Harding  v.  Tibbils,  15  Wis.  232 ;    Wofford  v.  McKinna,  23  Texas,  43. 

580 


CH.  XXI.]       TITLE    BY    INVOLUNTARY    ALIENATION.  §    760 

tory  provisions,  which  are  intended  for  the  benefit  of  the 
State,  and  which  does  not  affect  the  interests  of  the  pro- 
prietor, will  not  vitiate  the  purchaser's  title,  as  against  the 
former  owner.1  In  all  proceedings  at  common  law,  based 
upon  the  forfeiture  for  the  failure  to  perform  some  public 
duty  in  which  the  title  to  property  is  made  to  pass  from  the 
delinquent,  the  burden  of  proving  that  all  the  provisions  of 
the  law  of  forfeiture  had  been  strictly  complied  with  rests 
upon  the  purchaser.  This  rule  has  generally  been  applied 
to  tax-sales,  and  the  decisions  cited  below  2  bear  out  Mr. 
Blackwell  in  his  description  of  a  tax-title,  viz. :  "  The  oper- 
ative character  of  the  deed  depends  upon  the  regularity  of 
the  anterior  proceedings.  The  deed  is  not  the  title  itself, 
nor  even  evidence  of  it.  Its  recitals  bind  no  one.  It 
creates  no  estoppel  upon  the  former  owner.  No  presump- 
tion arises  from  the  mere  production  of  the  deed,  that  the 
facts  upon  which  it  is  based  had  any  existence.  When  it  is 
shown,  however,  that  the  ministerial  officers  of  the  law  have 
performed  every  duty  which  the  law  imposed  upon  them, 
and  every  condition  essential  to  its  character,  then  the  deed 
becomes  conclusive  evidence  of  title  in  the  grantee  accord- 
ing to  its  extent  and  purport."3     But  it  is  so  difficult  for  a 

1  Brown  v.  Veazie,  25  Me.  359;  Stevens  v.  McNamara,  36  Me.  176;  Lang- 
don  v.  Poor,  20  Vt.  15;  Wilson  v.  Bell,  7  Leigh,  22;  Rubey  v.  Huntsman,  32 
Mo.  501 ;  Ferris  v.  Coover,  10  Cal.  589. 

2  Stead's  Ex'rs  v.  Course,  4  Cranch,  402 ;  Williams  v.  Peyton's  Lessee,  4 
Wheat.  77 ;  Games  v.  Stiles,  14  Pet.  332 ;  Parker  v.  Overman,  18  How.  142 ; 
Little  v.  Herndon,  10  Wall.  26 ;  Jackson  v.  Shepard,  7  Cow.  88 ;  Newell  v. 
Wheeler,  48  N.  Y.  486 ;  Westfall  v.  Preston,  49  N.  Y.  349 ;  Cass  v.  Bellows,  31 
N.  H.  501 ;  Annan  v.  Baker,  49  N.  H.  161 ;  Brown  v.  Wright,  17  Vt.  97 ;  French 
v.  Patterson,  61  Me.  203 ;  Polk  v.  Rose,  25  Md.  153 ;  Shearer  v.  Woodburn,  10 
Pa.  St.  511 ;  Garrett  v.  White,  3  Ired.  Eq.  131 ;  Kellogg  v.  McLaughlin,  8  Ohio, 
114;  Gavin  v.  Sherman,  23  Ind.  32;  Scott  v.  Young  Men's  Soc,  1  Dougl. 
(Mich.)  119;  Goewey  v.  Urig,  18111.  242;  Charles?;.  Waugh,  35 111.  315;  Mor- 
ton v.  Reads,  6  Mo.  64;  Nelson  ?;.  Giebel,  17  Mo.  161 ;  Elliott  v.  Eddins,  24 
Ala.  508;  Doe  v.  Ins.  Co.,  8  Smed.  &  M.  197;  Hamilton  v.  Burum,  3  Yerg. 
855;  Fitch  v.  Casey,  2  Greene  (Iowa),  300;  Bucknall  v.  Story,  36  Cal.  67. 

»  Blackw.  Tax  Titles,  430. 

581 


§     761  TITLE    BY    INVOLUNTARY    ALIENATION.       [PART    III. 

purchaser  to  prove  in  detail  the  performance  of  the  pre- 
liminary proceedings  required  by  the  statutes,  and  it  being 
the  policy  of  the  State  to  provide  an  effective  mode  of  sell- 
ing lands  for  delinquent  taxes,  statutes  have  now  been 
passed  in  some  of  the  States  which  change  the  common-law 
rule  of  evidence  just  stated  and  throw  the  burden  of  proof 
upon  the  former  owner,  thereby  making  the  tax-deed  prima 
facie  evidence  of  title  and  of  a  compliance  with  the  require- 
ments of  the  law.  The  power  of  the  Legislature  to  shift 
the  burden  of  proof  in  tax-titles  has  been  often  questioned, 
but.it  is  now  an  unquestionable  rule  of  law  that  the  Legis- 
lature may  make  the  tax-deed  prima  facie  evidence  of  title, 
but  cannot  give  to  it  and  its  recitals  the  force  of  a  conclus- 
ive presumption,  that  all  the  preliminary  proceedings  had 
been  faithfully  carried  out.1 

§  761.^  Judicial  sales  for  delinquent  taxes.  —  The  cauce 
of  the  uncertainty,  as  to  the  validity  of  a  tax-title,  lies  in 
the  fact  that  the  proceeding,  which  culminates  in  a  sale  of 
the  land,  is  generally  ex  parte,  no  opportunity  being  given 
for  determining  judicially  whether  the  taxes  are  due,  or  for 
properly  protecting  the  interests  of  the  delinquent.  In  order 
to  avoid  this  objectionable  feature  of  tax-sales,  in  some  of 
the  States,  notably  Illinois,  it  is  provided  by  statute  that 
the  tax-collector  must  institute  suit  against  the  delinquent 
in  some  court  of  record,  usually  the  County  Court,  and  he 
is  only  authorized  to  make  a  sale  of  the  land  under  the 
decree  or  judgment  of  the  court.2     The  proceeding,  although 

1  Pillow  v.  Roberts,  13  How.  472;  Orons  v.  Veazie,  57  Me.  517;  Johnson 
v.  Elwood,  53  N.  Y.  435;  Butts  v.  Francis,  4  Conn.  424;  Hoffman  v.  Bell,  61 
Pa.  St.  444;  Smith  v.  Chapman,  10  Gratt.  445;  Stanberry  > .  Sillon,  13  Ohio 
St.  571  ;  Siblay  v.  Smith,  2  Mich.  486;  Wright  v.  Dunham,  13  Mich.  414; 
Delaplaine  v.  Cook,  7  Wis.  44;  Whitney  v.  Marshall,  17  Wis.  174;  St.  Louis 
v.  Coons,  37  Mo.  44 ;  Abbott  v.  Lindcnbower,  42  Mo.  162 ;  s.  c,  46  Mo.  291 ; 
Briscoe  v.  Coulter,  18  Ark.  423;  Allen  v.  Armstrong,  16  Iowa,  508;  Genther 
v.  Fuller,  36  Iowa,  604 ;  Ray  v.  Murdock,  36  Miss.  692  ;  Bidleman  v.  Brooks,  28 
Cal.  72. 

s  Hills  v.  Chicago,  60  111.  80  ;  Webster  v.  Chicago,  62  111.  302. 

582 


CH.  XXI.]       TITLE    BY    INVOLUNTARY   ALIENATION.  §     761 

differing  somewhat  from  the  ordinary  action  at  law,  con- 
tains its  essential  features,  and  has  the  same  general  effect 
as  to  the  conclusiveness  of  the  judgment.  If  property  is 
sold  under  such  a  judgment,  the  purchaser's  title  cannot  be 
affected  by  any  irregularity  not  taken  advantage  of  in  the 
judicial  proceeding,  unless  the  irregularity  is  so  gross  and 
so  essential  as  to  deprive  the  court  of  its  jurisdiction  over 
the  subject-matter.1  Where  the  statute  requires  certain 
preliminary  proceedings  to  be  observed,  in  order  that  the 
court  may  obtain  jurisdiction,  a  failure  to  institute  them 
will  vitiate  the  purchaser's  title,  notwithstanding  the  sale 
rests  upon  a  judgment  of  the  court.2  This  is  certainly  the 
fairest,  as  well  as  the  most  effective,  mode  of  enforcing  the 
payment  of  taxes,  and  it  is  surprising  that  it  has  not  been 
adopted  by  all  the  States. 

1  Cadmus  v.  Jackson,  52  Pa.  St.  295 ;  Ex  parte  Kellogg,  6  Vt.  509 ;  Carter 
v.  Walker,  2  Ohio  St.  339;  Dentler  v.  State,  4Blackf.  258;  "Wall  v.  Trumbull, 
16  Mich.  228 ;  Chestnut  v.  Marsh,  12  111.  173 ;  Young  v.  Thompson,  14  111.  380 ; 
Bailey  v.  Doolittle,  24  111.  577 ;  "Wallace  v.  Brown,  22  Ark.  118 ;  Eitel  v.  Foote, 
39  Cal.  439 ;  Mayo  v.  Foley,  40  Cal.  281. 

8  Thatcher  v.  Powell,  6  Wheat.  119;  Woods  v.  Freeman,  1  Wall.  398; 
Spellman  v.  Curtenius,  12  HI.  409 ;  Morrill  v.  Swartz,  39  111.  198 ;  Fox  v.  Tur- 
tle, 55  HI.  377 ;  Fortman  v.  Ruggles,  58  111.  207  ;  McGahan's  Case,  6  Iowa, 
331 ;  Mayo  v.  Ah  Loy,  32  Cal.  477. 

583 


SECTION  III. 

TITLE  BY  PRIVATE  GRANT. 

Section  768.  Title  by  private  grant,  what  is? 

(a.)  Common-law  conveyances. 

769.  Principal  features  and  classes  of  common-law  conveyances. 

770.  Feoffment. 

771.  Grant. 

772.  Lease. 

773.  Release,  confirmation  and  surrender. 

(b.)  Conveyances  under  the  Statute  of  Uses. 

774.  Retrospection. 

775.  Covenant  to  stand  seised. 

776.  Bargain  and  sale. 

777.  Future  estates  of  freehold  in  bargain  and  sale. 

778.  Lease  and  release. 

(c.)  Modern  conveyances. 

779.  What  conveyances  judicially  recognized. 

780.  Statutory  forms  of  conveyance. 

781.  Quit-claim  deeds. 

782.  Dual  character  of  common  conveyances. 

783.  Is  a  deed  necessary  to  convey  freeholds  ? 

§  768.  Title  by  private  grant,  what  is?  —  The  term 
"grant,"  as  here  used,  is  generic  in  signification,  and  is 
made  to  include  all  modes  of  private  alienation,  all  convey- 
ances inter  vivos,  as  distinguishable  from  title  by  devise.1 
The  term  at  common  law  had  a  more  specific  meaning,  but 
this  restricted  use  of  it  has  lost  its  practical  value,  and  will 
be  mentioned  in  a  subsequent  paragraph  only  for  the  pur- 
pose of  explaining  the  source  of  modern  rules  of  convey- 
ancing.    Conveyances  may  be  divided  into  three  principal 

1  Mr.  "Washburn  (3  Washb.  on  Real  Prop.  353)  cites  Mr.  Wood  to  the 
effect  that  "the  word  graiit,  taken  largely,  is  where  anything  is  granted,  or 
passed  from  one  to  another ;  and  in  this  sense  it  comprehends  feoffments,  bar- 
gains and  sales,  gifts,  leases  in  writing  or  by  deed,  and  sometimes  by  word 
without  writing."    3  Wood  Conv.  7.    See  4  Kent's  Com.  491. 

584 


CH.  XXI.]  TITLE    BY   PRIVATE    GRANT.  §    769 

classes,  vis.  :  (  a.)  common-law  conveyances  ;  (  b.)  convey- 
ances under  the  Statute  of  Uses ;  (  c. )  modern  conveyances. 
In  this  order  they  will  be  presented. 

(a.)    COMMON-LAW  CONVEYANCES. 

§  769.  Principal  features  and  classes  of  common-law 
conveyances.  — A  common-law  conveyance,  using  the  term 
in  its  broadest  sense,  is  one  which  directly,  and  by  the  force 
of  the  conveyance  itself,  transfers  the  legal  title  to  the 
grantee.  And  when  so  considered,  it  includes  the  modern 
statutory  conveyances  as  well  as  those  which  were  known 
at  common  law.  In  a  more  restricted  sense,  it  includes 
only  the  latter  class.  Common-law  conveyances  may  be 
sub-divided  into  two  classes,  viz.  :  primary  and  secondary 
conveyances.  A  primary  conveyance  is  one  which  transfers 
the  seisin  or  estate  to  one,  who  has  no  other  interest  or 
estate  in  the  property  ;  while  the  conveyance  is  called  sec- 
ondary, when  the  estate  previously  created  is  enlarged, 
restrained,  transferred,  or  extinguished.1  The  following 
are  enumerated  by  Blackstone  as  the  principal  kinds  of  pri- 
mary and  secondary  conveyances  :  Primary,  (1)  feoffment; 
(2)  gift;  (3)  grant ;  (4)  lease  ;  (5)  exchange;  (6)  partition. 
Secondary,  (1)  release;  (2)  confirmation;  (3)  surrender; 
(4)  assignment;  (5)  defeasance.2  A  gift,  donatio,  was 
the  name  applied  to  the  grant  of  an  estate  tail,  and 
differed  from  a  feoffment  only  in  the  character  of  the  estate 
created  or  granted.3  An  exchange  was  an  ancient  convey- 
ance, now  obsolete,  whereby  a  mutual  grant  of  equal  interests 
is  effected,  the  one  in  consideration  of  the  other,  the  peculiar 
value  of  which  was  its  capacity  to  take  effect  without  livery 
of  seisin,  and  merely  by  entry  into  possession.  But  the 
interests  or  estates  had  to  be  equal  in  quantity ;  an  estate  in 
fee  could  not  be  exchanged  for  one  for  life  or  for  years, 

1  2  Bla.  Com.  309.  2  2  Bla.  Com.  310. 

3  2  Bla,  Com.  316,  317. 

585 


§    770  TITLE    BY    PRIVATE    GRANT.  [PART    III. 

although  they  may  be  of  equal  pecuniary  value.1  Partition, 
if  voluntary,  differs  now  very  little,  if  any,  from  the  more 
common  modes  of  conveyance.  Partition  is  made  by  ordi- 
nary deeds  of  indenture,  conveying  to  each  of  the  parti- 
tioners  his  share  in  severalty.'-'  Involuntary  partition  is,  as 
the  term  implies,  a  species  of  involuntary  grant  effected 
through  the  decree  of  the  court.3  Defeasance  deeds  have 
been  already  fully  discussed  in  the  chapter  on  mortgages, 
and  will  require  no  further  elucidation.4  Assignment  is 
more  properly  a  transfer  of  an  interest  already  created  than 
a  peculiar  mode  of  acquiring  title.  When  applied  to  the 
subject  of  conveyancing  generally,  it  may  be  treated  as 
synonymous  with  the  generic  term  conveyance.  Its  peculiar 
signification  in  its  application  to  estates  for  years  has  been 
already  explained.5  The  remaining  common-law  convey- 
ances will  now  be  explained  somewhat  in  detail. 

§  770.  Feoffment. — This  was  the  chief  common-law 
conveyance  for  the  transfer  of  freehold  estates  in  corporeal 
hereditaments,  and  arose  out  of  the  peculiarities  of  the  feu- 
dal relation  between  the  lord  and  his  tenants.  The  word 
feoffment  is  derived  from  the  verb  feoffare,  or  infeudare, 
to  give  one  a  feud.  It  is,  therefore,  in  its  original  sense, 
the  grant  of  a  feud,  donatio  feudi.5  This  is  the  only  pri- 
mary common-law  conveyance  now  known  to  us  which  is 
capable  of  transferring  a  freehold.  It  is  said  to  operate  by 
transmutation  of  possession.  It  has  no  effect  if  there  be  no 
delivery  of  the  possession.  In  fact,  the  feoffment  is  itself 
nothing  more  than  the  delivery  of  the  possession  with  the 
intention  to  grant  an  estate  of  freehold.  The  grantor  was 
called  the  feoffor  and  the  grantee  the  feoffee.  The  feoffor, 
in  order  to  make  the  conveyance,  went  upon  the  land  with 
the  feoffee,  and  in  the  presence  of  witnesses  delivered  to 

1  2  Bla.  Com.  323.  *  See  ante,  sects.  302-307. 

2  See  ante,  sect.  260.  5  See  ante,  sect.  182. 

*  See  ante,  sect.  261.  6  2  Bla.  Com.  310:  Co.  Lit.  9. 

586 


CH.  XXI.]  TITLE    BY    PRIVATE    GRANT.  §     770 

the  latter  a  clod  of  earth,  or  a  twig,  or  some  other  thing 
taken  from  the  land,  which  was  treated  as  a  symbolical  de- 
livery of  the  land  itself.  The  feoffee,  who  during  this  time 
was  standing  near  the  border,  but  on  the  outside  of  the 
land,  then  entered  upon  it,  and  the  conveyance  was  com- 
plete. This  ceremony  was  called  livery  of  seisin.1  No 
writing  was  necessary.  Indeed,  at  first  a  deed  of  feoffment 
was  unusual.  But  later  on,  when  the  exigencies  of  ad- 
vancing  civilization  called  forth  the  grant  of  lands  to  differ- 
ent persons  with  different  estates,  or  interests  therein,  upon 
various  conditions,  and  under  multitudinous  limitations,  it 
was  found  necessary  to  accompany  the  livery  of  seisin  with 
a  deed,  explaining  and  setting  forth  the  terms  and  condi- 
tions of  the  conveyance,  in  order  to  avoid  the  mistakes  of 
the  witnesses,  which  would  naturally  occur  if  they  had  to 
rely  upon  their  memory.  But  not  until  the  enactment  of 
the  Statute  of  Frauds  in  the  reign  of  Charles  II.  was  it 
necessary  for  a  feoffment  to  be  evidenced  by  a  writing."2 
The  conveyance  by  feoffment  passed  the  actual  seisin  in  fee 
or  for  life  according  to  the  terms  of  the  gift,  whether  the 
feoffor  had  an  estate  in  the  land  or  not.  "  If  it  proposed 
to  convey  a  fee  simple,  it  created  an  actual  fee  simple  in 
the  feoffee,  by  right  or  by  wrong,  according  as  the  feoffor 
was  or  was  not  seised  in  fee."3     In  consequence  of  this 

1  This  symbolical  delivery  of  possession  is  very  ancient,  and  has  been  em- 
ployed by  almost  all  of  the  historical  nations.  Thus  we  read  in  the  Old  Testa- 
ment of  the  Bible,  Ruth,  iv:7:  "Now  this  was  the  manner  in  former  time,  in 
Israel,  concerning  redeeming  and  concerning  changing,  for  to  conform  all  things : 
a  man  plucked  off  his  shoe  and  gave  it  to  his  neighbor ;  and  this  was  a  testimony 
in  Israel."  Blackstone  also  tells  us  that  contracts  for  the  sale  of  lands  were 
made  among  the  Goths  and  Swedes  in  the  presence  of  witnesses,  who  extended 
the  cloak  of  the  buyer,  while  the  seller  cast  a  clod  of  the  land  into  it,  in  order 
to  give  possession  ;  while  a  staff  or  wand  was  also  delivered  from  the  vendor 
to  the  vendee,  which  passed  through  the  hands  of  the  witnesses.  2  Bla.  Com. 
313. 

2  2  Bla.  Com.  310-317 ;  Williams  on  Real  Prop.  147 ;  3  Washb.  on  Real 
Prop.  233,  351. 

8  3  Washb.  on  Real  Prop.  351. 

587 


§    771  TITLE    BY    PRIVATE    GRANT.  [PART    III. 

doctrine,  a  tortious  feoffment  disseised  the  rightful  owner, 
and  until  entry  by  him  he  was  as  absolutely  divested  of  his 
seisin  as  if  he  had  made  the  feoffment  himself.  And  where 
one  attempted  to  make  a  feoffment  of  a  greater  estate  than 
he  possessed,  his  feoffee  would  acquire  a  tortious  estate, 
and  the  smaller  estate  which  the  feoffor  actually  possessed 
would  be  lost  or  merged  in  the  tortious  estate  so  granted. 
His  feoffee,  therefore,  acquired  no  indefeasible  estate,  and 
could  be  ousted  at  once  by  the  rightful  owner  of  the  rever- 
sion. This  explains  the  tortious  operation  of  feoffments  by 
the  tenants  of  particular  estates  upon  contingent  remainders, 
which  has  already  been  explained.1  In  England,  and  in 
most  of  the  States  of  this  country  at  the  present  day,  feoff- 
ments have  been  either  abolished  altogether,  or  they  have 
by  statute  been  prevented  from  having  any  tortious  opera- 
tion upon  future  expectant  estates.2  The  doctrine  of  seisin 
has  been  so  fully  explained  in  preceding  chapters  that  noth- 
ing further  need  here  be  said  of  it. 

§  771.  Grant. — Conveyance  by  grant,  at  common  law, 
was  the  method  of  transferring  or  creating  estates  in  incor- 
poreal hereditaments.  These  rights  being  intangible  or 
incorporeal,  they  could  not  be  transferred  by  livery  of  seisin. 
"  For  which  reason  all  corporeal  hereditaments,  such  as 
lands  and  houses,  are  said  to  lie  in  livery  ;  and  the  others, 
advowsons,  commons,  rents,  reversions,  etc.,  to  lie  in 
grant."  3     Conveyance  by  grant  could  only  be   made  by 

1  See  ante,  sect.  422. 

2  4  Kent's  Com.  481  ;  3  Washb.  on  Real  Prop.  351 ;  Williams  on  Real  Prop. 
146.  In  Alabama,  Maine,  New  York,  Wisconsin,  Massachusetts,  Minnesota 
and  Michigan.  1  Washb.  on  Real  Prop.  120.  See  Grout  v.  Townshend,  2  Hill, 
554;  McCorry  v.  King's  Heirs,  3  Humph.  267  ;  Dennett  v.  Dennett,  40  N.  H. 
505.  In  South  Carolina  the  tortious  operation  of  feoffment  is  still  recognized 
as  an  active  element  of  the  law,  and  it  affords  to  heirs,  who  are  dissatisfied 
with  the  tenancy  for  life  given  to  them  by  will,  ready  means  for  defeating  the 
contingent  remainders  over  and  acquiring  the  fee  simple.  See  Faberr.  Police, 
10  S.  C,  376. 

3  2  Bla.  Com.  317. 

588 


CH.  XXI.]  TITLE    BY   PRIVATE    GRANT.  §    773 

<leed.  In  this  respect  the  law  is  still  unchanged.  But  the 
deed  of  grant  differs  in  form  but  little  from  the  deed  of 
feoffment,  the  same  operative  words  being  used  in  both, 
dedi  et  concessi,  "  have  given  and  granted."  But  the  deed 
Of  feoffment  is  inoperative  as  a  conveyance,  it  simply  acts 
as  an  attestation  of  the  conveyance  made  by  the  livery  of 
seisin.  At  common  law  corporeal  hereditaments  could  not 
be  transferred  by  grant.1  Another  important  distinction 
between  feoffment  and  grant  was  that  a  deed  of  grant  could 
not  be  made  to  create  a  tortious  estate.  A  grant  only  con- 
veys what  the  grantor  had  a  right  to  convey.  It  cannot 
work  a  disseisin  of  the  reversioner.2 

§  772.  Lease.  — This  is  properly  a  conveyance  of  a  par- 
ticular estate  in  lands,  whether  for  life,  or  for  years,  or  at 
will,  where  a  reversion  is  left  in  the  grantor.3  But  at  present 
the  term  is  used  to  indicate  the  conveyance  of  an  estate  less 
than  a  freehold.  Used  in  that  sense,  it  is  a  contract  be- 
tween lessor  and  lessee,  vesting  in  the  latter  a  right  to  the 
possession  of  the  land  for  a  term  of  years.  Until  possession 
is  taken  it  is  merely  a  chose  in  action,  an  executory  contract, 
which  is  called  an  interesse  termini.  It  becomes  an  estate 
when  it  takes  effect  in  possession.  No  livery  of  seisin  is 
required,  and  the  lessee  merely  enters  upon  the  land.4  It 
is  for  this  reason  that  an  estate  for  years  could  be  made  to 
commence  infuturo,  while  it  was  impossible  to  do  so  with 
a  freehold.5 

§  773.  Release,  confirmation  and  surrender.  —  These 
three  secondary  conveyances  are  so  nearly  allied  to  each 

1  2  Bla.  Com.  317 ;  3  Washb.  on  Keal  Prop.  352 ;  Huff  v.  McCauley,  53  Pa. 
St.  20G  ;  Drake  v.  Wells,  11  Allen,  143  ;  2  Shars.  Bla.  Com.  206,  note. 

2  Co.  Lit.  271  b,  Butler's  note ;  4  Kent's  Com.  353 ;  3  Washb.  on  Keal 
Prop.  352. 

3  2  Bla.  Com.  317. 

4  2  Bla.  Com.  318.     See  ante,  sects.  174,  178.. 
6  See  ante,  sect.  175. 

589 


§     773  TITLE    BY    PRIVATE    GRANT.  [PART    III. 

other  that  they  will  be  explained  and  distinguished  in  a  sin- 
gle paragraph.  A  release,  as  defined  by  Blackstone,  "is  a 
discharge  or  a  conveyance  of  a  man's  right  in  lands  or  ten- 
ements to  another  that  held  some  former  estate  in  possession. 
The  words  generally  used  therein  are^emised,  released  and 
forever  quit-claimed."  x  A  virtual  possession,  i.e.,  a  con- 
structive possession  which  may  be  converted  into  an  actual 
possession,  is  sufficient.  And  the  possession  of  the  lessee 
of  a  tenant  for  life  is  so  far  the  possession  of  the  tenant  for 
life  that  the  reversioner  may  make  a  release  to  him  (the  life 
tenant )  of  the  reversion.2  The  deed  of  release  may  be  used 
in  the  following  cases:  First,  to  enlarge  a  particular  estate 
in  possession  ;  as  where  the  reversioner  releases  the  inher- 
itance to  the  tenant  for  life.  But  the  reversion  must  be 
immediate  to  the  particular  estate.  An  outstanding  inter- 
mediate estate  would  prevent  a  release  of  the  reversion  to 
the  tenant  in  possession.3  Secoiidly,  to  pass  the  interest  of 
one  coparcener  or  joint-tenant  to  another.  Thirdly,  to 
transfer  to  a  disseisor  the  disseisee's  right  of  entry,  and 
thus  make  the  disseisor's  title  absolute.4  A  confirmation  is, 
according  to  Lord  Coke,  "  a  conveyance  of  an  estate  or  right 
in  esse,  whereby  a  voidable  estate  is  made  sure  and  unavoid- 
able, or  whereby  a  particular  estate  is  increased."5  The 
operative  words  in  a  confirmation  are  "  have  given,  granted, 
ratified,  approved,  and  confirmed."  6  A  surrender  operates 
to  transfer  a  particular  estate  to  the  immediate  reversioner, 
and  is  effected  by  the  words,  "hath  surrendered,  granted, 
and  yielded  up."  But  it  can  only  take  effect  where  the 
surrenderor  has  an  estate  in  possession,  and  the  surrenderee 
has  a  higher  estate  in  immediate  reversion.7  In  all  these 
cases  the  transfer  is  made  by  force  of  the  deed  of  release, 

1  2  Bla.  Com.  324.  5  2  Bla.  Com.  325 ;  1  Inst.  295. 

J  Co.  Lit.  270  a ;  Hargrave's  note,  3.  6  2  Bla.  Com.  325. 

3  Co.  Lit.  273  b.  •  2  Bla.  Com.  326. 
1  2  Bla.  Com.  324,  325. 

590 


CH.  XXI.]  TITLE    BY    PRIVATE    GRANT.  §    774 

confirmation  or  surrender,  and  does  not  require  livery  of 
seisin  in  the  first  two  cases,  viz.  :  release  and  confirmation, 
because  the  transferee  has  the  seisin  already,  and  in  the 
case  of  surrender  because  the  seisin  of  the  surrenderor, 
having  been  acquired  originally  from  the  surrenderee,  is 
subordinate  to  the  seisin  in  law  of  the  surrenderee,  his  re- 
versioner, the  estates  of  the  two  together  constituting  one 
and  the  same  seisin.1  At  the  present  day  the  ordinary  quit- 
claim deed,  so-called,  has  all  the  qualities  of  the  release  or 
confirmation,  and  is  effective  in  any  of  these  cases  to  convey 
the  interest  of  the  grantor.2 

(b.)       CONVEYANCES  UNDER  THE  STATUTE  OF  USES. 

§  774.  Retrospection. — It  will  be  remembered,  in  dis- 
cussing the  subject  of  uses  and  trusts,  it  was  stated  that  a 
use  could  be  created  originally  by  a  simple  oral  declaration 
of  the  legal  owner  of  the  land,  that  he  held  it  to  the  use  of 
another,  provided  the  declaration  was  made  for  a  good  or 
valuable  consideration  .3  The  Statute  of  Frauds  subsequently 
required  all  creations  or  grants  of  uses  and  trusts  to  be 
manifested  by  some  instrument  in  writing  signed  by  the 
party  to  be  charged.4  And  although  it  has  become  custom- 
ary to  create  uses  by  instruments  having  all  the  formalities 
of  a  deed,  it  is  not  necessary.  These  uses,  when  based  upon 
a  consideration,  were  enforced  in  equity  as  readily  as  if  there 
had  been  a  feoffment  to  uses.5  It  has  also  been  shown  that 
when  the  Statute  of  Uses  was  enacted,  all  uses  in  esse,  and 
vested,  became  at  once  executed  into  legal  estates,  the  seisin 
being  transferred  to  the  cestui  que  use  by  force  of  the  stat- 
ute, and  the  future  contingent  uses  were  executed  whenever 
they  became  vested.6  After  the  passage  of  the  Statute  of 
Uses,  therefore,  it  was  possible  to  convey  the  legal  estate 

1  2  Bla.  Com.  324-327.  4  See  ante,  sects.  442,  444,  507. 

*  See  post,  sect.  781.  5  See  ante,  sect.  444. 

8  See  ante,  sects.  444.  6  See  ante,  sects.  459  4G0,  470. 

591 


§    776  TITLE    BY    PRIVATE    GRANT.  [PART    III. 

without  making  use  of  any  of  the  "primary  common-law 
conveyances  which  operated  by  transmutation  of  possession, 
and  required  a  livery  of  seisin.  The  grantor  had  only  to 
make  a  declaration  of  uses  upon  sufficient  consideration. 
His  declaration  vested  the  use  or  equitable  estate  in  the 
grantee,  and  the  statute  immediately  executed  it  into  a  legal 
estate  and  transferred  the  seisin  to  him.  Thus  was  avoided 
the  necessity  of  a  resort  to  the  cumbersome  and  ceremonial 
feoffment  and  livery  of  seisin.  With  this  explanation,  and 
a  knowledge  of  the  doctrine  of  uses  and  trusts,  it  is  not 
difficult  to  understand  the  operation  of  the  deeds  of  covenants 
to  stand  seised,  bargain  and  sale,  and  lease  and  release. 
The  deeds  themselves  vest  in  the  grantee  only  the  use  or 
equitable  estate.  The  legal  estate  and  seisin  are  transferred 
by  the  Statute  of  Uses.  And  where  any  one  of  these  deeds 
creates  a  future  and  contingent  use  which  cannot  be  executed 
by  the  statute,  the  operation  of  the  statute  upon  the  deed 
will  be  suspended  in  respect  to  such  interest,  until  it  has 
become  vested  and  in  a  position  to  be  executed. 

§  775.  Covenant  to  stand  seised.  —  This  is  a  covenant 
between  near  relatives  by  blood  or  marriage,  founded  upon 
the  good  consideration  of  natural  love  and  affection,  that 
the  covenantor,  the  legal  proprietor  of  the  land,  shall  stand 
seised  to  the  use  of  the  covenantee.  But  the  conveyance 
can  only  operate  as  a  covenant  to  stand  seised  when  it  is 
made  upon  the  consideration  of  blood  or  marriage.1 

§  776.  Bargain  and  sale.  — This  deed  is  in  the  nature  of 
a  contract,  in  which  the  bargainor  for  a  valuable  considera- 

1  2  Bla.  Com.  338 ;  2  Saunders  on  Uses,  82 ;  2  Rolle  Abr.  784,  pi.  244 ; 
Emery  v.  Chase,  6  Me.  232.  Although  it  is  usual  for  the  covenant  to  be  made 
with  the  person  who  is  to  receive  the  benefit  of  the  use,  it  is  not  necessary. 
A.  may  co\enant  with  B.  to  stand  seised  to  the  use  of  C,  A.'s  wife  or  child. 
Co.  Lit.  112  a;  Bedell's  Case,  7  Rep.  40;  Brewer  v.  Hardy,  22  Pick.  376; 
Leavett  v.  Leavett,  47  N.  H.  329 ;  Barrett  v.  French,  1  Conn.  35* ;  Hayes  v. 
Kershaw,  1  Sandf.  Ch.  258. 
592 


CH.  XXI.]  TITLE    BY   PRIVATE    GRANT.  §    777 

tion  bargains  and  sells  the  land  to  the  bargainee,  and,  under 
the  doctrine  of  equitable  conversion,  becomes  the  trustee  for 
the  bargainee,  holding  the  legal  title  and  seisin  in  this  fidu- 
ciary capacity.  As  it  appears  from  this  definition,  the 
bargain  and  sale  must  be  founded  upon  a  valuable  considera- 
tion, i.e.,  money,  or  money's  equivalent.  But  the  consid- 
eration need  not  be  an  adequate  compensation  for  the  land. 
The  covenant  to  stand  seised,  and  the  bargain  and  sale  are 
to  be  distinguished  by  the  relation  of  the  parties,  and  the 
consideration  upon  which  the  conveyance  rests,  and  not  by 
the  operative  words.  "  Covenant  to  stand  seised"  is  the 
operative  clause  in  the  conveyance  of  that  name,  but  neither 
it  nor  "bargain  and  sell  "  has  any  technical,  precise  legal 
import;  and  a  covenant  to  stand  seised,  if  founded  upon  a 
valuable  consideration,  will  operate  as  a  bargain  and  sale 
between  strangers;  while,  on  the  other  hand,  a  bargain  and 
sale  deed  without  valuable  consideration  will  operate  as  a 
covenant  to  stand  seised  between  near  relations.1  In  Eng- 
land  by  statute  no  bargain  and  sale  can  have  the  effect, 
under  the  Statute  of  Uses,  of  vesting  the  legal  title  in  the 
bargainee,  unless  it  is  made  by  deed,  and  enrolled  within 
six  months  in  one  of  the  courts  of  Westminster  Hall,  or 
with  the  custos  rotulorum  of  the  country.2  This  statute  has 
never  been  in  force  in  the  United  States.3 

§  777.  Future  estates  of  freehold  in  bargain  and  sale. — 

It  has  been  held  in  unqualified  terms  by  the  courts  of  Massa- 
chusetts and  Maine ,  that  a  freehold  estate  to  commence  in 
futuro  cannot  be  created  by  a  bargain  and  sale  deed.4     But 

1  Co.  Lit.  40  b ;  2  Inst.  072 ;  1  Prest.  Conv.  38 ;  Daviess  v.  Speed,  12  Mod. 
39;  Trafton  v.  Hawes,  102  Mass.  533;  Jackson  v.  Cadwell,  1  Cow.  639;  Eck- 
raan  v.  Eckraan,  08  Pa.  St.  460.     See  post,  sect.  782. 

2  2  Bla.  Com.  338  ;  3  Washb.  on  Real  Prop.  313. 

s  Rogers  v.  Eagle  Fire  Ins.  Co.,  9  Wend.  611 ;  Jackson  v.  Wood,  12  Johns. 
74;  Jackson  v.  Dunsbagh,  1  Johns.  97;  Given  v.  Doe,  7  Blaekf.  210;  Welch 
v.  Foster,  12  Mass.  90;  Report  of  Judges,  3  Binn.  156. 

*  Marden  v.  Chase,  32  Me.  329 ;  Pray  v.  Pierce,  7  Mass.  381 ;  Gale  v.  Coburn, 
18  Pick.  397  ;   Brewer  v.  Hardy,  22  Pick.  370. 

593 


§     778  TITLE    BY    PRIVATE    GRUNT.  [l'ART    III. 

it  has  been  held  very  generally  elsewhere,  that  such  a  deed 
is  capable  of  creating  a  future  estate  of  freehold,  and  even 
the  courts  of  the  States  above  named  have  finally  come  to 
the  same  conclusion,  overruling  the  prior  decisions  to  the 
contrary.1  It  is  difficult  to  see  how  this  error  could  have 
gained  such  recognition.  Bargain  and  sale,  and  covenant 
to  stand  seised,  rest  upon  the  same  foundation,  that  they 
both  create  uses  in  the  grantee,  and  operate  under  the  Stat- 
ute of  Uses.  And  there  is  no  better  established  rule  in 
respect  to  the  subject  of  uses  and  trusts  than  that  a  use  is 
free  from  the  restrictions  controlling  the  limitation  of  com- 
mon-law  legal  estates,  which  arise  from  the  doctrine  of 
seisin,  and  the  necessity  of  livery  of  seisin,  in  order  to  con- 
vey a  title. 

§  778.  Lease  and  release.  —  This  conveyance  is  stated 
to  have  been  invented  by  Sergeant  Moore  soon  after  the  pas- 
sage of  the  Statute  of  Enrolment,  and  consists  of  two  sepa- 
rate instruments,  a  lease  and  a  release,  and  was  introduced  to 
avoid  the  necessity  of  enrolling  the  bargain  and  sale.  The 
lease  is  for  one  year,  in  the  form  of  a  bargain  and  sale, 
which  need  not  have  been  enrolled,  since  the  statute  referred 
only  to  freeholds.  This  bargain  and  sale  lease  vested  a  use 
for  one  year  in  the  lessee,  and  the  statute  transferred  to  him 
the  possession  and  the  legal  title.  Being  then  in  possession 
as  tenant,  he  was  in  a  position  to  receive  a  grant  of  the  re- 
version or  freehold  by  way  of  a  release.2  This  is,  perhaps, 
the  most  effective  of  the  conveyances  under  the  Statute  of 
Uses,  and  in  England  it  superseded  to  a  large  extent  both 
the  covenant  to  stand  seised  and  bargain  and  sale  deeds. 

1  Shapleigh  o.  Pilsbury,  1  Me.  271  :  AVvman  v.  Brown,  50  Me.  150:  Jordan 
v.  Stevens,  51  Me.  79:  Drown  c.  Smith,  52  Me.  141;  Jackson  v.  Swart,  20 
Johns.  87 :  Jackson  v.  MeKenny,  3  "Wend.  235 ;  Hayes  v.  Kershaw,  1  Sandf. 
Ch.  267;  Bank  v.  Housman,  6  Paige,  526 :  Rogers  o.  Eagle  Fire  Ins.  Co.,  9 
Wend.  611 ;  Trafton  v.  Hawes.  102  Mass.  533. 

-  2  Bla.  Com.  337. 
594 


CH.  XXI.]  TITLE    BY    PRIVATE    GRANT.  §    779 

The  possession,  acquired  by  the  bargain  and  sale  lease,  is 
only  such  a  constructive  possession  which  is  sufficient  to 
support  the  release,  and  does  not  give  to  the  lessee  the  right 
to  maintain  actions  in  respect  to  the  possession  until  he  has 
gained  actual  possession  by  entry.1  Both  the  lease  and  the 
release  are  common-law  conveyances,  but  the  lease,  operating 
as  a  common-law  conveyance,  vests  in  the  lessee  before  entry 
only  an  interesse  termini,  and  not  an  estate.  It  must  ope- 
rate as  the  limitation  of  a  use  under  the  Statute  of  Uses,  in 
order  to  give  the  lessee  an  estate  with  constructive  posses- 
sion. The  release  itself  is  a  common-law  conveyance,  and 
operates  as  such  in  this  connection.  In  England  it  had  to 
operate  as  a  common-law  conveyance  to  do  without  enroll- 
ment. But  in  this  country  it  may  operate  just  as  well  as 
the  limitation  of  a  future  use  as  a  release  of  a  future  legal 
estate.2 

(  C .  )       MODERN  CONVEYANCES . 

§  779.  What  conveyances  judicially  recognized.  —  Al- 
though there  is  an  almost  infinite  variance  to  be  found  in 
the  rules  of  conveyancing  in  the  different  States  of  the 
country,  it  is  believed  that  all  the  modes  of  conveyancing, 
which  were  recognized  by  the  English  common  law,  hereto- 
fore discussed,  and  those  which  operated  under  the  Statute 
of  Uses  are  recognized  as  valid  and  effective  to  pass  the 
legal  title.  In  New  York  deeds  of  feoffment  with  livery  of 
seisin  are  expressly  abolished  by  statute,3  while  in  other 
States  they  remain  as  a  valid,  though  somewhat  obsolete, 
conveyance.  In  most  of  these  States,  in  order  that  a  deed 
of  feoffment  may  take  effect  as  such,  it  must  still  be  accom- 
panied with  the  ceremonial  livery  of  seisin.  But  in  several  of 
the  States,  notably  Massachusetts,  Maine,  Mississippi,  Penn- 
sylvania, Missouri,  Connecticut,  Rhode  Island,  the  recording 
and  delivery  of  a  deed  of  feoffment  is  equivalent  to  the  actual 

1     3  Washb.  on  Real  Prop.  356.  2  3  Washb.  on  Real  Prop.  855. 

■■  1  Rev.  Stat.  N.  Y.  738. 

595 


§    774  TITLE    BY  PRIVATE    GRANT.  [PART   III. 

livery  of  seisin,  and  dispenses  with  it.1  The  conveyances 
under  the  Statute  of  Uses  are  also  recognized,  and  in  Ar- 
kansas, Connecticut,  Delaware,  Florida,  Georgia,  Illinois, 
Indiana,  Kentucky,  Maryland,  Michigan,  Minnesota,  Missis- 
sippi, Missouri,  New  Hampshire,  New  Jersey,  Pennsylvania, 
Vermont  and  Virginia,  the  deed  in  general  use  is  substan- 
tially a  bargain  and  sale.'1  In  no  State  is  it  thought  impos- 
sible to  make  a  valid  conveyance  by  deed  operating  under 
the  Statute  of  Uses.3 

§  780.  Statutory  forms  of  conveyance.  —  But  in  addition 
to  the  forms  of  conveyance  already  discussed,  there  are 
found  in  some  of  the  States  others,  which  are  prescribed  by 
statute  and  made  effectual  to  pass  the  legal  title.  Such 
forms  are  to  be  found  in  New  Hampshire,  South  Carolina, 
Pennsylvania,  New  York,  Iowa,  Maryland  and  Tennessee. 
The  use  of  these  forms,  however,  is  not  made  obligatory. 
The  statute  is  construed  to  be  directory,  and  does  not  inval- 
idate the  other  modes  of  conveyance  which  were  previously 
in  use.  A  bargain  and  sale  or  a  feoffment  would  be  just  as 
effectual  now  as  formerly.4  In  New  York,  as  previously 
stated,  feoffments  have  been  abolished,  and  all  conveyances, 
whether  they  are  in  form  a  feoffment  or  a  deed  under  the 
Statute  of  Uses,  are  by  statute  made  to  operate  as,  and  are 

1  Pray  v.  Pierce,  7  Mass.  381 ;  Russell  v.  Coffin,  8  Pick.  143 ;  Barrett  v. 
French,  1  Conn.  354;  Bryan  v.  Bradley,  16  Conn.  481 ;  Caldwell  v.  Fulton,  31 
Pa.  St.  483;  "Wyman  v.  Brown,  50  Me.  160;  Williamson  v.  Carleton,  51  Me. 
462;  Mississippi  Code  (1871),  sect  2294;  Rev.  Stat.  R.  I.,  ch.  146,  sect.  1 ; 
Perry  v.  Price,  1  Mo.  553 ;  Poe  v.  Domec,  48  Mo.  441. 

2  2  Washb.  on  Real  Prop.  452. 

3  G-ivan  v.  Doe.7  Blackf.  212;  Funk  v.  Creswell,  5  Iowa,  68;  Brewer  v. 
Hardy,  22  Pick.  376;  Barrett  v.  French,  1  Conn.  354;  Tabb  v.  Baird,  3  Call, 
475;  Duval  v.  Bibb,  3  Call,  362;  Rogers  v.  Eagle  Fire  Ins.  Co.,  9  Wend.  611. 

*  3  Washb.  on  Real  Prop.  360 ;  Chamberlain  v.  Crane,  1  N.  H.  64 ;  French 
»).  French,  3  N.  H.  234 ;  Pritchard  v.  Brown,  4  N.  H.  397  ;  Funk  v.  Creswell,  5 
Iowa,  68 ;  Redfern  v.  Middleton,  Rice,  464 ;  2  Washb.  on  Real  Prop.  447  ;  Mil- 
ler v.  Miller,  Meigs,  484. 

596 


CH.  XXI.]  TITLE    BY   PRIVATE    GRANT.  §    781 

called,  grants.1  And  in  Georgia  a  statute  provides  that  any 
deed  which  clearly  shows  the  intention  of  the  party  to  con- 
vey the  title  to  lands,  shall  be  effectual  for  that  purpose. 
No  form  is  prescribed,  and  no  want  of  form  will  invalidate 
the  transaction.2 

§  781.  Quit-claim  deed.  — Although  a  deed  of  release  is 
a  secondary  conveyance,  and  is  only  effectual  in  conveying 
a  reversionary  or  equitable  interest  to  one  already  possessed 
of  an  estate  in  possession,  a  form  of  deed  similar  to  the  re- 
lease, and  known  as  a  quit-claim  deed,  has  met  with  general 
recognition  in  this  country,  and  has  in  some  of  the  States 
been  expressly  recognized  by  statute.3  In  Kentucky  release 
is  by  statute  made  a  primary  conveyance.4  But  a  quit- 
claim deed  only  passes  that  interest  which  the  grantor  has 
at  the  time  of  conveyance,  and  the  grantee  under  it  has  not 
the  equities  of  a  bona  fide  purchaser.  If  the  title  should 
fail  there  is  no  remedy  against  the  grantor,  for  a  quit-claim 
deed  contains  no  covenants  of  title.5  And  should  the  grantor 
subsequently  acquire  the  title,  no  estoppel  arises  against 
him  in  favor  of  the  grantee,  to  prevent  his  enforcement  of 
the  title.6  Quit-claim  deeds  contain  usually  as  their  opera- 
tive words  "remise,  release,  and  forever  quit-claim,"  but 
the  form  may  be  varied.  And  where  there  are  no  technical 
words  of  sale  and  conveyance,  the  quit-claim  deed  has  been 

1  1  Eev.  Stat  N.  Y.  738. 

2  3  Washb.  on  Real  Prop.  361. 

3  It  is  so  recognized  in  Minnesota,  Maine,  Mississippi,  Massachusetts  and 
Illinois.  3  Washb.  on  Real  Prop.  359,  notes.  See  also  Brown  v.  Jackson,  3 
Wheat.  452;  Jackson  v.  Bradford,  4  Wend.  619;  Jackson  v.  Hubble,  1  Cow. 
613:  Rogers  v.  Hillbouse,  3  Conn.  398;  Dart  v.  Dart,  7  Conn.  255;  Hall  v. 
Ashby,  9  Ohio,  96;  McConnell  v.  Reed,  6111.117;  Hamilton  v.  Doolittle,  37 
111.  482;  Bogy  v.  Shoab,  13  Mo.  380;  Kerr  v.  Freeman,  33  Miss.  292;  Touch- 
ardv.  Crow,  20  Cal.  150;  Carpentier  v.  Williamson,  25  Cal.  168. 

*  3  Washb.  on  Real  Prop.  360. 

5  May  v.  LeClair,  11  Wall.  232;  Kyle  v.  Kavanagh,  103  Mass.  356;  Thorp 
c.Keokuk  Coal  Co.,  48  N.  Y.  253;  Sherwood  v.  Barlow,  19  Com.  471. 

6  Bruce  v.  Luke,  9  Kan.  201 ;  12  Am.  Rep.  491. 

597 


§    782  TITLE    BY    PRIVATE    GRANT.  [PART    III. 

held  effectual  to  pass  the  title,  provided  words  of  transfer, 
or  words  evidencing  the  intention  to  transfer,  are  present.1 
Quit-claim  deeds  are  practically  nothing  more  than  deeds 
without  covenants  of  title,  and  they  will  operate  as  primary 
or  secondary  conveyances  according  to  the  circumstances  of 
the  parties  in  respect  to  the  land,  at  least  in  those  States 
where  the  quit-claim  deed  is  recognized  as  a  primary  con- 
veyance. 

§  782.  Dual  character  of  common  conveyances. — The 

character  of  the  conveyance  is  in  the  first  instance  deter- 
mined by  the. operative  words  of  conveyance  appearing  in 
the  deed.  The  forms  of  expression,  characteristic  of  the 
various  modes  of  conveyance,  have  been  given  in  connec- 
tion with  the  description  of  them.  The  ordinary  deed, 
usually  found  in  general  use  in  the  United  States,  contains 
the  operative  words,  "  give,  grant,  bargain  and  sell." 
"  Give  and  grant,"  do  et  concedo,  were  used  in  the  deed  of 
feoffment  and  grant,  and  are  common-law  words  of  convey- 
ance. "  Bargain  and  sell,"  as  has  already  been  explained, 
are  the  operative  words  of  bargain  and  sale  deeds.  By  a 
course  of  judicial  legislation,  going  far  back  into  the  com- 
mon law  of  Lord  Coke's  day,  in  order  to  effectuate  the 
intention  of  the  parties,  when  clearly  manifested,  a  deed 
has  been  held  to  operate  as  that  mode  of  conveyance 
which  best  carries  out  the  intention  of  the  parties,  pro- 
vided there  are  sufficient  operative  words  to  bring  the 
deed  within  that  class  of  conveyances.  Where,  there- 
fore, a  deed  contains  the  words  "give,  grant,  bargain, 
and  sell,"  it  may  operate  either  as  a  bargain  and  sale 
under  the  Statute  of  Uses,  or  as  a  feoffment  at  common 
law,  if  there  is  livery  of  seisin,  or  if  livery  is  dispensed 
with  by  statute  or  by  judicial  legislation ; 2  or  further,  it  may 

1  Fash  v.  Blake,  38  111.  367  ;  Johnson  v.  Boutock,  88  111  114. 

2  See  ante,  sect.  779. 

598 


CH.  XIX.]  TITLE    BY    PRIVATE    GKANT.  §    782 

operate  as  the  modern  statutory  conveyance,  provided  the 
operative  words  are  the  same  as  prescribed  by  the  statute.1 
In  most  of  the  cases  arising  under  this  rule  of  construction 
the  deed  is  inoperative  as  one  mode  of  conveyance  on  ac- 
count of  some  defect  in  the  execution,  or  in  the  nature  of 
the  grant,  and  complies  with  the  requirements  of  some  other 
mode  of  conveyance.  Thus  a  deed  of  release  will  take 
effect  as  a  covenant  to  stand  seised,  if  there  is  a  limitation 
of  a  future  freehold  estate  which  cannot  be  created  by  a 
common-law  convej^ance.2  So  also  will  release  be  treated 
as  a  bargain  and  sale,  where  it  would  be  invalid  as  a  release, 
because  it  is  made  to  a  party  not  in  possession  of  the  land. 
The  words  of  release  raise  a  use  in  favor  of  the  releasee.3 
A  use  may  be  raised  by  any  words  showing  the  intention  to 
convey  a  title.  In  a  case  in  Virginia  the  words  of  convey- 
ance were  "  give,  grant,  and  deliver,"  and  the  court  held  it 
to  be  a  good  bargain  and  sale.4  It  is  also  a  well  established 
rule  that  deeds  operating  under  the  Statute  of  Uses  will  be 
treated  as  bargains  and  sales,  or  as  covenants  to  stand  seised, 
whatever  may  be  the  words  of  conveyance,  according  to  the 
consideration  present  to  support  the  conveyance.  If  it  is  a 
good  consideration  it  will  be  a  covenant  to  stand  seised,  and 
a  bargain  and  sale  if  the  consideration  is  valuable.5  So  also, 
if  the  operative  words  are  "  give,  grant,  bargain,  and  sell," 
and  the  like,  will  the  deed  be  treated  as  a  common-law  con- 
veyance if  it  cannot  operate  as  a  bargain  and  sale,  or  a  cov- 
enant to  stand  seised,  for  the  want  of  a  good  or  valuable 

1  3  Washb.  on  Real  Prop.  357 ;  Sheppard  Com.  Assur.  82,  83. 

a  Roe  v.  Tranmarr,  7  Willes,  682;  s.  c,  2  Smith's  Ld.  Cas.  288;  Smith  v. 
Frederick,  1  Russ.  210;  Haggerston  v.  Han  bury,  5  B.  &  C.  101;  Gibson  u. 
Minet,  1  H.  Bl.  569;  s.c,  3  T.  R.  481. 

3  Pray  v.  Pierce,  7  Mass.  381;  Marshall  v.  Fisk,  6  Mass.  24;  Russell  v. 
Coffin,  8  Pick.  143 ;  Jackson  v.  Beach,  1  Johns.  Cas.  401. 

*  Rowletts  v.  Daniel,  4  Munf.  473 ;  Tabb  v.  Baird,  3  Call,  475. 

6  Cox  v.  Edwards,  14  Mass.  492;  Brewer  v.  Hardy,  22  Pick.  376;  Trafton 
v.  Hawes,  102  Mass.  533  ;  Barrett  v.  French,  1  Conn.  354 ;  Cheney  v.  Watkins, 
1  Harr.  &  J.  527 ;  Okison  v.  Patterson,  1  Watts  &  S.  395. 

599 


§    782  TITLE    BY    PRIVATE    GRANT.  [PART    III. 

consideration.1  And  where  there  is  a  grant  in  such  a  deed 
to  A.  to  the  use  of  B.,  since  the  policy  of  the  courts  of  this 
country  is  to  execute  all  uses,  and  vest  the  legal  title  in  the 
cestui  que  use  whenever  it  is  possible,  the  deed'will  be  treated 
as  a  common-law  conveyance,  since  such  a  limitation  in  a 
bargain  and  sale  would  create  a  use  upon  a  use,  which  can- 
not be  executed.2  That  a  bargain  and  sale  to  A.  to  the  use 
of  B.  raises  a  use  upon  a  use,  and  gives  the  legal  title  to 
A.  under  the  Statute  of  Uses,  is  the  settled  rule  of  the  courts 
of  those  States  where  the  doctrine  of  ulterior  uses,  or  use 
upon  a  use,  has  not  been  abolished  by  statute.3  A  deed  may 
also  as  to  one.  limitation  operate  as  a  common-law  convey- 
ance, while  it  may  be  treated  as  a  conveyance  under  the 
Statute  of  Uses  in  respect  to  another  limitation,  if  such  a 
construction  is  necessary  to  carry  out  the  intention  of  the 
parties.4  But  when  it  is  desired  that  a  deed  should  operate 
as  a  particular  mode  of  conveyance  it  must  possess  all  the 
requisites  of  that  conveyance.  And  although  by  this  liberal 
and  accommodating  rule  of  construction  it  is  not  likely  for 
a  common  and  ordinary  grant  to  be  made,  which  will  not 
possess  the  requisites  of  some  form  of  conveyance,  and  which 
cannot  take  effect  in  consequence,  yet  it  is  possible,  and 
where  the  grant  is  so  singularly  defective  it  will,  of  course, 
be  void  and  inoperative.5 

1  Emery  v.  Chase,  5  Me.  232;  Bryan  v.  Bradley,  16  Conn.  474;  Adams  v. 
Guerard,  29  Ga.  676 ;  Cheney  v.  Watkins,  1  Harr.  &  J.  527. 

8  Thatchers.  Omans,  3  Pick.  522;  Bacon  v.  Taylor,  Kirby,  368;  Marshall 
v.  Fisk,  6  Mass.  24 ;  Hunt  v.  Hunt,  14  Pick.  374 ;  Jackson  v.  Sebnng,  16  Johns. 
515;  Sprague  v.  Woods,  4  Watts  &  S.  194.  See  Linville  v.  Golding,  11  Ind. 
374. 

3  See  ante,  sect.  463. 

*  Emery  v.  Chase,  5  Me.  232  ;  Bryan  v.  Bradley,  16  Conn.  474. 

5  Emery  v.  Chase,  5  Me.  232 ;  Jackson  v.  Sebring,  16  Johns.  515 ;  Jackson 
v.  Cadwell,  1  Cow.  622 ;  Marshall  v.  Fisk,  6  Mass.  24 ;  Carroll  v.  Norwood,  5 
Harr.  &  J.  155;  Den  v.  Hanks,  5  Ired.  30;  Foster  v.  Dennison,  9  Ohio,  121. 
In  Den  v.  Hanks,  supra,  the  deed  could  not  operate  as  a  bargain  and  sale,  be- 
cause no  consideration  was  expressed  or  proved.  It  could  not  take  effect  as  a 
covenant  to  stand  seised,  for  there  was  no  blood  relationship  between  the  par- 

600 


CH.  XXI.]  TITLE    BY   PRIVATE    GRANT.  §    783 

§  783.  Is    a    deed    necessary   to    convey   freeholds?  — 

By  the  term  "  deed"  is  meant  an  instrument  under  seal.1 
The  question,  therefore,  which  is  mooted  here  is,  whether  a 
sealed  instrument  is  necessary  to  convey  the  legal  title  to  a 
freehold  estate.  It  has  been  so  long,  and  so  generally  con- 
sidered indispensable,  unless  abolished  by  statute,  that, 
although  irresistibly  driven  to  the  conclusion,  it  was  with 
some  hesitation  that  the  contrary  position,  with  qualifica- 
tions, has  been  here  assumed.  The  position  is,  that  for  the 
conveyance  of  a  legal  freehold  estate  in  a  corporeal  heredit- 
ament, a  sealed  instrument  is  not  necessary,  unless  a  statute 
expressly  requires  it.  There  were  two  principal  classes  of 
conveyances  in  England,  viz. :  common-law  conveyances, 
operating  by  transmutation  of  possession,  and  conveyances 
under  the  Statute  of  Uses.  The  principal  common-law  con- 
veyances, and  those  which  concern  us  in  the  present  discus- 
sion, were  "feoffment"  and  "grant."  Grant  was  used 
to  convey  incorporeal  hereditaments  and  reversionary  inter- 
ests in  corporeal  hereditaments,  and  required  a  sealed 
instrument.2  Feoffment  was  used  to  convey  corporeal 
freeholds  in  possession,  and  consisted  of  the  ceremonial 
livery  of  seisin.  No  deed,  or  any  other  writing,  was  re- 
quired, although  it  was  customary  to  employ  a  deed,  where 
the  limitations  were  numerous  and  intricate.3  In  respect  to 
the  conveyances  under  the  Statute  of  Uses,  it  is  a  well 
known  fact  that  uses  before  the  Statute  of  Frauds  could  be 
created  in  corporeal  hereditaments  by  an  oral  declaration, 
which  would  be  executed  by  the  Statute  of  Uses  into  a  legal 
estate,  if  it  was  supported  by  a  sufficient  consideration,4 

ties  to  import  a  good  consideration,  and  it  could  not  operate  as  a  feoffment, 
because  there  had  been  no  livery  of  seisin.  The  deed  was  therefore  declared 
void. 

1  See  post,  sects.  787,  808. 

2  See  ante,  sect.  771. 

3  See  ante,  sect.  770;  Williams  on  Real  Prop.  147,  152. 

4  See  ante,  sects.  444,  774.     The  Statute  of  Uses  expressly  states  this  to  be 
the  case.     The  statute  enacts  that  "where  any  person  stood  or  were  seised 

601 


$    783  TITLE    BY   PRIVATE    GRANT.  [PART    III. 

except  in  one  case,  viz. :  in  the  case  of  a  bargain  and  sale. 
By  statute,  27  Hen.  VIII.,  ch.  16,  commonly  called  and 
known  as  the  Statute  of  Enrollment,  it  was  enacted  that  no 
bargain  and  sale  shall  have  the  effect  of  conveying  the  legal 
title  to  a  freehold  estate,  unless  it  is  in  writing,  indented 
and  sealed,  and  enrolled  in  one  of  the  King's  courts  at  West- 
minster.1 From  this  synoptical  statement  it  is  evident, 
therefore,  that,  using  the  language  of  Mr.  Washburn, 
*'  prior  to  the  Statute  of  Frauds,  in  the  time  of  Charles  II., 
it  did  not  require  a  written  instrument  to  convey  corporeal 
hereditaments,  except  as  provided  in  the  matter  of  deeds  of 
bargain  and  sale."  2  But  it  was  at  an  early  day  held  im- 
possible to  create  a  use  in  any  incorporeal  hereditament, 
such  as  rents,  which  required  a  deed  at  common  law,. unless 
it  was  declared  by  deed.3  Now  the  Statute  of  Frauds  only 
required  an  instrument  in  writing,  signed  by  the  grantor, 
and  did  not  require  it  to  be  sealed.  After  the  passage  of 
the  Statute  of  Frauds,  therefore,  except  as  to  bargains  and 
sales  and  grants,4  a  deed  was  not  required  to  make  an  effec- 
tual conveyance.  Feoffments  could  be  made  by  a  simple 
instrument  in  writing,  and  it  would  seem  that  a  covenant  to 
stand  seised  did  not  actually  require  a  seal,  although  a  cov- 
enant is  a  sealed  instrument ;  for  it  is  stated  unqualifiedly 
by  the  old  authorities  that,  for  the  creation  of  a  use,  an  oral 
declaration  was  sufficient,  but  it  required  a  valuable  consid- 
eration to  create  a  use  in  a  stranger,  and  a  good  consider- 

*  *  *  of  and  in  any  honours,  castles,  lands,  etc.,  to  use,  etc.,  of  any  other 
person,  etc.,  by  reason  of  any  bargain,  sale,  feoffment,  *  *  *  covenant, 
contract,  agreement,  will,  or  otherwise,"  etc.     See  ante,  sect.  459,  note. 

1  3  Washb.  on  Real  Prop.  421. 

2  3  Washb.  on  Real  Prop.  421,  422. 

3  2  Washb.  on  Real  Prop.  392  ;  2  Bla.  Com.  331 ;  1  Spence  Eq.  Jur.  449. 

*  It  must  not  be  understood  that  any  reference  is  made  here  to  the  common- 
law  secondary  conveyances,  such  as  a  release,  exchange  or  surrender.  These 
conveyances  were  all  in  the  nature  of  a  "grant,"  and  required  a  deed.  See 
ante,  sects.  769,  773. 

602 


CH.  XXI.]  TITLE    BY   PRIVATE    GRANT.  §    783 

ation  to  vest  it  in  a  blood  relation.1  But  although  a  deed 
was  not  required  before,  or  after,  the  Statute  of  Frauds, 
except  in  the  case  of  grants  and  bargains  and  sales,  it  was 
always  customary  to  use  them.  In  the  early  days  of  the 
feudal  system,  the  great  lords  and  barons  were  ignorant  of 
the  art  of  writing,  and  could  not  sign  their  names;  but 
they  all  possessed  seals,  and  when  any  important  writing 
Avas  required  to  be  executed,  they  sealed  it  with  their  own 
seals,  instead  of  signing.2  From  the  solemnity  of  the  act 
of  sealing,  a  seal  was9  at  an  early  day,  held  to  import  a 
consideration.  If,  therefore,  a  sealed  instrument  was  used 
in  the  declaration  of  a  use,  no  actual  consideration  was 
necessary  to  support  the  use,  if  some  sufficient  considera- 
tion was  acknowledged  in  the  deed.3  But  if  it  was  an  oral 
declaration,  a  consideration  had  to  be  proved  in  order  to 
raise  a  use.     To  avoid,  therefore5  necessity  of  a  con- 

sideration, it  was  the  common  custo.w  to  use  a  sealed  instru- 
ment. This  was  the  state  of  the  law  in  England  at  the  time 
of  the  American  revolution.  The  next  question  is,  What 
is  the  condition  of  the  law  in  America  ?  It  follows,  as  a 
necessary  consequence,  that  in  those  States  which  have  ex- 
pressly or  impliedly  adopted  the  common  law  of  England, 
except  so  far  as  it  is  modified  by  statute,  or  repugnant  to 
the  political  institutions  of  this  country,  the  law  in  respect  to 
the  requirement  of  a  sealed  instrument  to  convey  lands  must 
be  the  same,  unless  it  has  been  changed  by  a  local  statute. 
The  only  doubtful  question  involved  in  this  conclusion  is  the 
effect  of  the  English  Statute  of  Enrollment,  upon  the  Amer- 
ican law.  It  has  been  very  generally  held  that  this  statute 
has  never  been  recognized  by  the  American  courts  as  a  part 

1  See  2  Washb.  on  Real  Prop.  392,  394 ;  1  Spence  Eq.  Jur.  449,  450.  The 
word  "covenant"  is  also  often  used  as  synonymous  with  contract  or  agree- 
ment. Thus  we  speak  of  covenants  in  leases,  when  usually  leases  are  not 
sealed. 

3  Williams  on  Real  Prop.  147 ;  2  Bla.  Com.  305,  306 ;  3  Hallam's  Middle 
Ages,  329. 

3  See  ante,  sect.  443,  and  post,  sect.  800. 

603 


§    783  TITLE    BY   PRIVATE    GRANT.  [PART    III. 

of  the  common  law.1  But  the  cases  cited  in  the  note  only 
involved  the  question  as  to  the  necessity  of  an  enrollment, 
and  did  not  involve  a  discussion  as  to  the  applicability  of 
the  statute,  so  far  as  it  requires  a  deed  to  create  a  use  by 
bargain  and  sale.  The  natural  presumption  would  be,  that 
a  statute  could  not  be  recognized  in  part,  and  denied  to  be 
in  force  as  to  its  other  requirements,  particularly  where  the 
provision,  supposed  to  be  recognized,  is  only  auxiliary  to 
the  main  object  and  purpose  of  the  statute.  The  conclu- 
sion, therefore,  is,  that  unless  the  Statute  of  Enrollment  is 
in  force  in  this  country,  or  unless  there  is  a  State  statute,  re- 
quiring a  use  or  trust  to  be  created  by  deed  in  order  that  it 
may  be  executed  by  the  Statute  of  Uses  into  a  legal  estate, 
the  ordinary  deed  in  common  use  will  be  effectual  to  pass 
the  legal  title  to  any  freehold  in  a  corporeal  hereditament, 
without  being  sealed,  if  an  actual  consideration  is  proved 
to  have  passed  from  the  grantee  to  the  grantor.2  And, 
furthermore,  if  in  any  state  the  ordinary  conveyance  can 
operate  as  a  feoffment,  and  the  state  statutes  do  not  ex- 
pressly require  a  sealed  instrument,  the  conveyance  will  be 
a  good  feoffment  without  being  sealed,  and  without  the 
acknowledgment  or  proof  of  a  consideration,  if  the  con- 
veyance expressly  declares  to  whose  use  the  lands  shall  be 
held.3 

1  Rogers  o.  Eagle  Fire  Ins.  Co.,  9  Wend.  611 ;  Jackson  v.  "Wood,  12  Johns. 
74;  Jackson  v.  Dunsbagh,  1  Johns.  97;  Givan  v.  Doe,  7  Blackf.  210;  Welch 
v.  Foster,  12  Mass.  96 ;  Report  of  Judges,  3  Binn.  156. 

2  The  author  has  had  neither  time  nor  space  to  ascertain  and  state  the  exact 
law  on  this  subject  in  any  particular  State.  He  has  contented  himself  with 
the  general  statement  of  a  somewhat  abstract  rule,  and  leaves  the  continuation 
of  the  investigation  to  the  reader.  One  other  observation  may  perhaps  be 
necessary;  and  that  is,  that  where  a  statute  prescribes  a  form  of  conveyance, 
and  requires  a  seal  in  executing  it,  it  does  not  invalidate  the  other  modes  of 
conveyance,  which  were  previously  in  use,  unless  they  are  expressly  repealed 
(see  ante,  sect.  780) ;  and  the  requirement  of  a  seal  in  the  statutory  conveyance 
will  not  by  implication  make  a  seal  necessary  in  the  other  forms  of  convey- 
ance. 

3  See  sects.  443,  801. 

604 


CHAPTEE  XXII. 

DEEDS  —  THEIR  REQUISITES  AND  COMPONENT  PARTS. 

Section      I.   TJie  requisites  of  a  deed. 

II.   Tlie  component  parts  of  a  deed. 
III.   Covenants  in  deeds. 

SECTION  I. 

THE  REQUISITES  OF  A  DEED. 

Section  786.  Definition  of  a  deed. 

787.  Requisites,  what  they  are. 

788.  A  sufficient  writing,  what  constitutes. 

789.  A  sufficient  writing,  what  constitutes  —  Continued. 

790.  Alterations  and  interlineations. 

791.  Proper  parties  —  The  grantor. 

792.  Infants  and  insane  persons. 

793.  Ratification  and  disaffirmance. 

794.  Deeds  of  married  women. 

795.  A  disseisee  cannot  convey. 

796.  Fraud  and  duress. 

797.  Proper  parties —  Grantees. 

798.  Proper  parties  named  in  the  deed. 

799.  A  thing  to  be  granted. 

800.  A  thing  to  be  granted  —  Continued. 

801.  The  consideration. 

802.  Voluntary  and  fraudulent  conveyances. 

803.  Operative  words  of  conveyance. 

804.  Execution,  what  constitutes. 

805.  Power  of  attorney. 

806.  Power  of  attorney  granted  by  married  woman. 

807.  Signing. 

808.  Sealing. 

809.  Attestation. 

810.  Acknowledgment  or  probate. 

811.  Reading  of  the  deed,  when  necessary. 

812.  Delivery  and  acceptance. 

813.  What  constitutes  a  sufficient  delivery. 

605 


§    788  THE    KEQU1SITES    OF    A   DEED.  [PART   III. 

Section  814.  Delivery  to  stranger,  when  assent  of  grantee  presumed. 

815.  Escrows. 

816.  ^Registration. 

817.  To  whom  and  of  what  is  record  constructive  notice? 

818.  From  what  time  does  priority  take  effect? 

819.  What  constitutes  sufficient  notice  of  title  —  Possession. 

§  786.  Definition  of  a  deed. — A  deed,  as  defined  by 
Lord  Coke,  is  a  writing  sealed  and  delivered  by  the  party 
thereto,  and  contains  a  contract,  executory  or  executed. 
According  to  the  common-law  before  the  passage  of  the 
Statute  of  Frauds,  signing  was  unnecessary.  It  is  now, 
however,  an  important  act,  and  in  most,  if  not  all,  of  the 
United  States,  it  is  absolutely  necessary  to  the  validity  of 
the  deed.1  In  discussing  what  constitutes  a  deed,  its  requi- 
sites will  be  considered  first,  and  then  the  component  parts 
in  an  orderly  arrangement. 

§  787.  Requisites,  what  they  are. — The  following 
may  be  stated  as  including  all  the  essentials  of  a  deed,  viz. : 
(1)  a  sufficient  writing;  (2)  proper  parties,  grantor  and 
grantee;  (3)  a  thing  to  be  granted  ;  (4)  a  consideration; 
(5)  execution,  i.e.,  signing,  sealing,  attestation,  and  ac- 
knowledgment; (6)  delivery  and  acceptance;  (7)  regis- 
tration.    These  will  be  considered  in  their  regular  order. 

§  788.  A  sufficient  writing,  what  constitutes.  —  With- 
out meeting  with  any  positive  adjudication,  it  seems  to  be 
the  accepted  opinion  of  all  the  courts  and  treatise-writers 
that  to  make  a  valid  deed  it  must  be  written  on  parchment 
or  paper,  it  being  supposed  that  these  two  materials  are 
more  durable,  and  less  capable  of  erasure  or  alteration.2 
This  objection  goes  more  to  the  inadvisability  of  using  other 

1  3  Washb.  on  Real  Prop.  239;  Co.  Lit.  171  b;  Van  Santwood  v.  Sandford, 
12  Johns.  198;  Hutchins  v.  Byrnes,  9  Gray,  367;  Taylor  v.  Morton,  5  Dana, 
365;  Hammond  v.  Alexander,  1  Bibb,  333. 

2  3  Washb.  on  Real  Prop.  240;  Co.  Lit.  35  b;  2  Bla.  Com.  297;  Warden  v. 
Lynch,  5  Johns.  240. 

606 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    78£ 

materials,  from  the  individual  standpoint  of  the  parties , 
rather  than  to  establish  a  ground  for  holding  the  deed  to  be 
otherwise  invalid.  There  can  be  no  objection  in  principle 
to  a  deed  written  on  cloth  or  on  unprepared  skins  of  ani- 
mals, as  long  as  the  writing  remains  unobliterated.  And 
the  reason  fails  altogether  if  the  writing  is  carved  on  stone 
or  engraved  on  metal.  The  writing  must  clearly  manifest 
the  intention  of  the  parties,  and  contain  the  entire  agree- 
ment. If  any  uncertainty,  either  as  to  the  parties  or  the 
subject-matter,  appears  on  the  face  of  the  deed,  and  cannot 
be  explained  away  by  a  reference  to  other  parts  of  the  same 
deed,  or  by  some  other  deed  expressly  referred  to,  parol 
evidence  will  not  be  admitted  for  that  purpose,  and  the  deed 
will  be  void  for  the  want  of  certainty.1  But  it  is  not  nec- 
essary to  the  validity  of  the  deed  that  there  should  be  a 
strict  observance  of  the  rules  of  grammar  or  rhetoric;  as 
long  as  the  intention  and  meaning  of  the  parties  can  be 
gathered  from  the  instrument,  the  law  does  not  require  ac- 
curacy or  precision  of  language.2 

§  789.  A  sufficient  writing,  what  constitutes — Con- 
tinued.—  But  in  order  that  a  deed  may  be  valid  as  a  con- 
veyance, the  writing  must  be  completed  in  all  its  essential 
parts  before  it  is  delivered.  Any  alteration  or  filling  up  of 
blanks  after  delivery  will  not  give  life  to  the  deed.3  But 
though  there  is  no  variance  among  the  decisions  in  respect 
to  the  correctness  of  this  position,  that  the  deed  must  be 
completed  before  it  is  delivered  to  the  grantee  in  order  to 
be  valid,  it  is  impossible  to  reconcile  the  authorities  upon 

1  3  Washb.  on  Eeal  Prop.  266 ;  Boardmaii  v.  Reed,  6  Pet.  345 ;  Deery  v. 
Cray,  10  Wall.  270;  Peck  v.  Mallams,  10  N.  Y.  630;  Andrews  v.  Todd,  50  N. 
H.  565 ;  Hill  v.  Mo  wry,  6  Gray,  551 ;  Fenwick  v.  Floyd,  1  Har.  &  G.  172 ; 
Thomas  v.  Turney,  lb.  437. 

2  3  Washb.  on  Real  Prop.  240;  Shrewsbury's  Case,  9  Rep.  48;  Walters  v. 
Bredin,  70  Pa.  St.  237. 

3  3  Washb.  on  Real  Prop.  240;  Burns  v.  Lynde,  6  Allen,  305;  Duncan  v. 
Hodges,  4  McCord,  239 ;  Perminter  v.  McDaniel,  1  Hill  (  S.  C.)  267. 

007 


§    790  THE    REQUISITES    OF    A    DEED.  [PART    III. 

the  question,  whether  the  delivery  after  its  completion  may 
not  be  made  by  an  agent  under  a  parol  authority.  In  the 
early  case  of  Texira  v.  Evans,1  it  was  held  that  a  bond  which 
was  signed  by  the  obligor,  but  in  which  the  sum  was  left 
blank,  and  was  afterwards  filled  in  by  an  agent  and  by  him 
delivered  to  the  obligee  according  to  the  parol  authority  of 
his  principal,  was  good  and  binding  upon  the  parties.  This 
case  has  been  often  commented  upon,  and  in  the  cases,  cited 
in  the  note  below,  repudiated,  and  the  contrary  doctrine 
established  that  the  deed  must  be  completed  before  it  leaves 
the  hands  of  the  grantor,  or  there  must  be  a  second  delivery 
by  him.  An  agent  cannot  deliver  it,  unless  he  obtains  his 
authority  from  a  power  of  attorney  under  seal.2  On  the 
other  hand,  the  principle  has  been  sustained  by  the  courts 
of  some  of  the  States.3  The  weight  of  authority  in  this 
country  is  certainly  in  favor  of  the  position  that  a  second 
delivery  is  necessary,  although  the  better  opinion  would 
seem  to  be  that  the  completion  and  delivery  of  the  deed  may 
be  done  by  an  agent  as  effectively  as  by  the  principal.  This 
rule  would  give  ample  security  to  the  grantor  against  any 
fraudulent  transactions,  while  it  would  make  the  title  of  the 
grantee  more  secure. 

§  790.  Alterations  and  interlineations.  —  It  is  also  an 
important  question  how  far  alterations  and  interlineations 

1  1  Anstr.  228. 

2  Hibblewhite  v.  McMorine,  6  Mees.  &  W.  200;  Davidson  v.  Cooper  11  M. 
&  W.  794;  Drury  v.  Foster,  2  Wall.  24;  Burns  v.  Lynde,  6  Allen,  305;  Bas- 
f'ord  v.  Pearson,  9  Allen,  388;  Vose  v.  Dolan,  108  Mass.  159;  Chauncey  v.  Ar- 
nold, 24  N.  Y.  330;  Preston  v.  Hull,  23  Gratt.  605;  Ingram  v.  Little,  14  Ga. 
174;  Gilberts.  Antbony,  1  Yerg.  69;  Williams  v.  Crutcber,  6  Miss.  71 ;  Viser 
v.  Rice,  33  Texas,  130;  Cross  v.  State  Bank,  5  Ark.  525;  Cummings  v.  Cassily, 
5  B.  Mon.  74;  Conover  v.  Porter.  14  Ohio,  450;  Simms  v.  Harvey,  19  Iowa. 
J00 ;  People  v.  Organ,  27  111.  29 ;  Mans  v.  Worthing,  3  111.  26 ;  Upton  v.  Archer, 

1 1  Cal.  85. 

3  Inhabitants,  etc.,  r.  Huntress,  53  Me.  90;  McDonald  o.  Eggleston.  26  Vt 
161 ;  Wiley  v.  Moor,  17  Serg.  &  R.  438 ;  Field  v.  Stagg,  52  Mo.  534;  Van  Etta 
v.  Evanson,  28  Wis.  33 ;  Devin  v.  Himer,  29  Iowa,  301 ;  Owen  v.  Perry,  25 
Iowa,  412. 

fi08 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    790 

may  be  made  in  a  deed  without  affecting  its  validity.  Lord 
<3oke  states  that  in  ancient  times  an  erasure  or  interlineation 
would  invalidate  the  deed  at  whatever  time  it  was  made.1 
But  now,  as  it  was  even  in  the  days  of  Coke,  erasures  and 
interlineations  do  not  invalidate  the  deed.  But  in  order  that 
the  deed  may  take  effect  as  modified  by  the  interlineation  or 
erasure,  the  alteration  must  have  been  made  before  the  de- 
livery of  the  deed.-'  It  is,  however,  doubtful  upon  whom 
the  burden  lies,  to  prove  that  the  alteration  was  made  before 
delivery.  Where  the  alteration  is  in  an  unimportant  part 
of  the  deed  the  question  does  not  become  important.  But 
if  the  change  is  made  in  an  essential  part,  some  of  the  au- 
thorities treat  the  erasure  or  interlineation  as  extremely 
suspicious,  and  throw  the  burden  of  proof  upon  the  grantee. 
The  presumption  of  law,  according  to  these  authorities,  is 
that  it  was  made  after  the  delivery.3  The  courts  of  Massa- 
chusetts and  other  States  deny  that  there  is  any  presumption 
of  law  in  respect  to  the  matter,  but  hold  that  the  burden  of 
proof  is  thrown  upon  the  party  relying  upon  the  deed.4 
The  following  quotation  from  the  court  of  Missouri  may, 
perhaps,  furnish  the  correct  rule  :  "As  a  general  rule,  if 
any  presumption  at  all  is  indulged,  the  law  will  presume 
that  the  alteration  was  made  before,  or  at  least  contempo- 
raneous with,  the  signing  of  the  writing,  unless  peculiar 
circumstances  are  patent  upon  its  face  ;  and  even  then  the 
whole  question  is  one  for  the  jury  to  settle  upon  the  facts, 
when  and  where,  and  with  what  intent,  the  alteration  was 

1  Co.  Lit.  225  b. 

2  3  Washb.  on  Real  Prop.  244 ;  Jordan  v.  Stevens,  51  Me.  78 ;  Bassett  v. 
Bassett,  55  Me.  126  ;  Gordon  v.  Sizer,  39  Miss.  818. 

3  United  States  v.  Linn,  1  How.  104;  Hill  v.  Barnes,  11  N.  H.  395;  Dow 
v.  Jewell,  18  N.  H.  350  ;  Clifford  v.  Parker,  2  Mann.  &  G.  909 ;  Morris  v.  Van- 
deren,  1  Dall.  07 ;  1  Greenl.  on  Ev.,  sect.  504  ;  Galland  v.  Jackman,  20  Cal.  85. 

4  Ely  v.  Ely,  6  Gray,  439;  Wilde  v.  Armsby,  0  Cush.  314;  Knight  v.  Clem- 
ents, 8  A.  &  E.  215;  Beaman  v.  Russell,  20  Vt.  205;  Jackson  v.  Osborn,  2 
Wend.  555;  Herrick  v.  Malin,  22  Wend.  388;  Comstock  v.  Smith,  26  Mich. 
300. 

39  609 


§    791  THE    REQUISITES    OF    A   DEED.  [PART    III. 

made."  x  The  safer  plan,  and  the  one  adopted  by  all  care- 
ful conveyancers,  when  alterations  in  the  body  of  the  deed 
are  necessary,  is  to  note  the  erasure  or  interlineation  upon 
the  instrument,  and  generally  above  the  attestation  clause, 
to  show  that  it  was  made  before  the  delivery.  But  no  sub- 
sequent alteration  of  the  deed,  not  even  its  destruction,  can 
have  any  effect  upon  the  title  which  has  been  passed  by  the 
deed,2  although  it  would  be  fatal  to  any  action  upon  the 
covenants  in  the  deed  if  the  deed  is  fraudulently  destroyed 
or  a  material  alteration  is  made  in  the  covenant.3  But  if  a 
deed  is  destroyed  without  the  fault  of  the  grantee,  he  may 
resort  to  equity  to  compel  the  grantor  to  give  him  a  new 
deed,4  or  the  contents  may  be  proved  by  parol  evidence, 
after  the  loss  of  the  deed  has  been  established.5 

§  791.  Proper  parties  —  The  grantor. — It  needs  only 
to  be  stated,  to  receive  immediate  recognition,  that  to  make 
a  valid  deed  there  must  be  a  competent  grantor.  He  must 
own  the  property,  and  have  the  capacity  to  convey.  The 
number  of  persons  who  are  in  this  respect  under  disability 
is  very  small,  and  may  all  be  included  in  the  classes  known 
as  infants,  non  compotes  mentis,  and  married  women.  The 
disabilities  resting  upon  these  persons  are  not  uniform  in 
their  extent,  and  vary  in  reference  to  each  class.  In  re- 
spect to  some  the  deeds  are  absolutely  void,  while  as  to 
others  they  are  only  voidable.  They  will  be  discussed  sep- 
arately. 

1  McCormick  v.  Fitzmorris,  39  Mo.  34 ;  Matthews  v.  Coalter,  9  Mo.  705. 

3  Davis  v.  Cooper,  11  Mees.  &  W.  800 ;  Bolton  v.  Carlisle,  2  H.  Bl.  263 ;  Roe 
v.  York,  6  East,  86 ;  Hatch  v.  Hatch,  9  Mass.  367 ;  Dana  v.  Newhall,  13  Mass. 
498 ;  Chessman  v.  Whittemore,  23  Pick.  231 ;  Lewis  v.  Payn,  8  Cow.  71 ;  Nich- 
olson v.  Halsey,  1  Johns.  Ch.  417 ;  Jackson  v.  Chase,  2  Johns.  84 ;  Raynor  v. 
Wilson,  6  Hill,  469;  Rifener  v.  Bowman,  53  Pa.  St.  318;  Fletcher  r.  Mansur, 
5  Ind.  267  ;  Wood  v.  Hilderbrand,  46  Mo.  284. 

3  Davidson  v.  Cooper,  11  Mees.  &  W.  800;  Deems  v.  Philips,  5  W.  Va.  168; 
Woods  v.  Hilderband,  46  Mo.  284. 

*  King  v.  Gilson,  32  111.  354. 

6  Wallace  v.  Harmstad,  44  Pa.  St.  492;  Shaumberg  v.  Wright,  39  Mo.  125. 
CIO 


CH.  XXII.]  THE    REQUISITES    OF    A   DEED.  §    792 

§  792.  Infants  and  insane  persons. — As  a  general  prop- 
osition, it  may  be  stated  that  the  deeds  of  infants  and 
lunatics  are  placed  in  respect  to  their  validity  on  the  same 
basis,  and  are  held  to  be  voidable  and  not  void.1  But  if 
the  insane  person  is  under  guardianship,  the  deed  will  be 
absolutely  void;2  while  in  New  York  and  Pennsylvania  the 
deed  of  an  insane  person  seems  under  all  circumstances  to 
be  void.3  But  it  is  often  difficult  to  determine  what  degree 
of  sanity  is  sufficient  to  enable  a  person  to  make  a  good  and 
valid  deed.  The  question  is  no  doubt  one  of  fact,  whether 
the  person  has  sufficient  strength  of  mind  to  understand  the 
nature  and  consequences  of  the  act  of  conveyance.  The 
fact  that  his  mental  powers  have  been  impaired  will  not 
invalidate  the  deed,  provided  the}*  have  not  been  so  far  af- 
fected as  to  make  him  incapable  to  transact  business,  and 
to  protect  his  interests  to  a  reasonable  degree.4  But  deeds 
of  both  infants  and  lunatics  may  be  made  valid  by  a  sub- 
sequent ratification ;  in  the  case  of  infants  after  coming  of 
age,  and  with  lunatics  after  the  mental  disturbance  has 
passed  away.  In  order  to  avoid  a  deed  made  by  an  infant 
or  insane  person,  it  will  not  be  necessary  to  restore  the 

1  2  Kent's  Com.  236 ;  3  Washb.  on  Real  Prop.  249,  250 ;  Williams  on  Real 
Prop.  60 ;  2  Bin.  Com.  291 ;  Zouch  v.  Parsons,  3  Burr.  1794 ;  Tucker  v.  More- 
land,  10  Pet.  58;  Irvine  v.  Irvine,  9  Wall.  626;  Hovey  v.  Hobson,  53  Me.  451  ; 
Kendall  v.  Lawrence,  22  Pick.  540;  Wait  v.  Maxwell,  5  Pick.  217;  Arnold  v. 
Richmond  Iron  Works,  1  Gray,  434 ;  Howe  v.  Howe,  99  Mass.  98 ;  Roof  v. 
Stafford,  7  Cow.  180;  Kline  v.  Beebe,  6  Conn.  494;  Richardson  v.  Boright,  9 
Vt.368;  Eaton  v.  Eaton,  37  N.  J.  L.  507;  Wallace  v.  Lewis,  4  Barr.  75; 
Doe  v.  Abernathy,  7  Blackf.  442;  Babcock  v.  Bowman,  8  Ind.  110;  Miller 
v.  Lingerman,  24  Ind.  3S7;  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh.  245;  Phil- 
lips v.  Green,  3  A.  K.  Marsh.  11 ;  Myers  v.  Sanders,  7  Dana,  524. 

2  Wait  v.  Maxwell,  5  Pick.  217 ;  Griswold  v.  Butler,  3  Conn.  231 ;  Pearl  v. 
McDowell,  3  J.  J.  Marsh.  658. 

3  Van  Deusen  v.  Sweet,  51  N.  Y.  384;  Matter  of  Desilver,  5  Rawle.  111. 
But  see  Roof  v.  Stafford,  7  Cow.  180;  Bool  v.  Mix,  17  Wend.  119;  Ingraham 
v.  Baldwin,  9  N.  Y.  45. 

4  Dennett  v.  Dennett,  44  N.  H.  538 ;  Doe  v.  Prettyman,  1  Houst.  339. 

611 


§    793  THE    REQUISITES    OF    A   DEED.  [PART   III. 

consideration.1  An  infant  cannot  avoid  his  deed  while  he 
is  an  infant,  and  a  second  deed  during  infancy  is  no  disaf- 
firmance of  the  first.2 

§  793.  Ratification  and  disaffirmance. — What  consti- 
tutes a  ratification  or  a  disaffirmance  is,  perhaps,  not  easy 
of  solution.  It  is  not  necessary  that  the  act  of  ratification 
should  be  as  formal  as  the  ordinary  release  of  an  outstand- 
ing claim  of  title  ;  but,  on  the  other  hand,  the  act  or  acts, 
from  which  the  ratification  may  be  inferred,  must  be  a  suf- 
ficiently strong  admission  of  the  title  of  the  grantee  to  give 
rise  to  the  presumption,  that  the  quondam  infant  or  lunatic 
intends  to  ratify  his  deed.3  The  acceptance  of  a  lease,  an 
oral  acknowledgment  of  the  validity  of  the  conveyance,  the 
subsequent  acceptance  of  the  consideration,  provided  these 
acts  are  done  intelligently,  will  be  a  sufficient  ratification.4 
So,  on  the  other  hand,  an  entry,  the  institution  of  a  suit,  a 
subsequent  conveyance,  are  sufficient  acts  of  disaffirmance  to 
avoid  the  deed,  and  no  subsequent  ratification  of  the  first 
deed  can  invalidate  the  title  of  the  grantee  in  the  second  con- 
veyance, if  the  second  deed  is  recorded.5  So  far  the  courts 
are  agreed.  But  whether  a  mere  silent  acquiescence  will 
operate  as  a  ratification  is  a  disputed  point.  A  number  of 
the  courts  hold  that,  in  order  to  avoid  a  deed  made  under  dis- 
ability, it  must  be  disaffirmed  within  a  reasonable  time  after 
the  removal  of  the  disability,  and  that  if  the  grantee  is  suf- 

1  2  Kent's  Com.  236 ;  Hovey  v.  Hobson,  53  Me.  453 ;  Gibson  v.  Soper,  6 
Gray,  279;  Richardson  v.  Boright,  9  Vt.  368;  Wallace  v.  Lewis,  4  Harr.  75; 
Cresinger  v.  Welch,  15  Ohio,  156;  Babcock  v.  Bowman,  8  Ind.  110. 

2  3  Washb.  on  Real  Prop.  250 ;  Emmons  v.  Murray,  16  N.  H.  385. 

3  Howe  v.  Howe,  99  Mass.  98. 

4  Irvine  v.  Irvine,  9  Wall.  618;  Bond  v.  Bond,  7  Allen,  1 ;  Ferguson  t>.  Bell, 
17  Mo.  347. 

6  Tucker  v.  Moreland,  10  Pet.  75;  Bond  v.  Bond,  7  Allen,  1;  Jackson  v. 
Carpenter,  11  Johns.  541 ;  Jackson  v.  Burchin,  14  Johns.  124;  Drake  v.  Ram- 
sey, 5  Ohio,  253 ;  Black  v.  Hills,  36  111.  379. 
612 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    794 

ered  to  remain  in  possession  for  a  long  time,  particularly  if  he 
makes  valuable  improvements  upon  the  premises,  the  deed 
will  be  ratified,  and  the  grantee's  title  made  good.1  But  the 
position  is  not  sustained  by  the  other  courts,  which  maintain 
that  mere  acquiescence  will  not  operate  as  a  ratification, 
unless  it  has  been  so  long;  continued  as  to  bar  the  right  of 
action  under  the  Statute  of  Limitations.2 

§  794.  Deeds  of  married  women.  —  It  may  be  stated  as 
a  general  proposition  that  the  deeds  of  married  women, 
unless  they  are  also  executed  by  their  husbands,  or  unless 
it  is  otherwise  provided  by  statute,  are  absolutely  void; 
and  if,  after  becoming  discovert,  a  second  conveyance,  or  a 
second  delivery  of  the  same  deed,  is  made,  the  deed  takes 
effect  as  a  primary  conveyance  from  the  time  of  the  second 
delivery,  and  not  as  a  secondary  conveyance  confirmatory 
of  the  prior  conveyance  during  coverture.3  Reference  is 
not  made  here  to  her  sole  and  separate  property.  This 
species  of  property  is  an  equitable  estate  governed  by  the 
rules  of  the  law  of  uses  and  trusts ;  this  branch  of  the  sub- 
ject has  been  already  discussed,  and  the  powers  of  married 
women  in  relation  thereto  explained.4  But  in  a  number  of 
the  United  States  statutes  have  been  enacted  abolishing  the 
entire  common  law  in  relation  to  the  property  rights  of 
married  women,  and  giving  them  the  rights  and  capacity  of 

1  Robins  v.  Eaton,  10  N.  H.561 ;  Emmons  v.  Murray,  16  N.  H.  385;  Jackson 
v.  Carpenter,  11  Johns.  639;  Bostwick  v.  Atkins,  3  N.  Y.  58;  Kline  v.  Beebe, 
6  Conn.  506;  Richardson  v.  Boright,  9  Vt.  371 ;  Wallace  v.  Lewis,  4  Harr.  75; 
Wheaton  v.  East,  5  Yerg.  41 ;  Hartman  v.  Kendal,  4  Ind.  403. 

2  Irvine  v.  Irvine,  9  Wall,  618;  Hovey  v.  Hobson,  53  Me.  453;  Drake  v. 
Ramsey,  5  Ohio,  253 ;  Cresinger  v.  Welch,  15  Ohio,  156. 

3  Zouch  v.  Parsons,  3  Burr.  1805 ;  Allen  v.  Hooper,  50  Me.  374 ;  Hatch  v. 
Bates,  54  Me.  139 ;  Lowell  v.  Daniels,  2  Gray,  161 ;  Concord  Bank  v.  Bellis,  10 
Cush.  277;  Dow  v.  Jewell,  18  N.  H.  355;  Davis  v.  Andrews,  30  Vt.  681;  Per- 
rine  v.  Perrine,  11  N.  J.  Eq.  144;  Harris  v.  Burdock,  4  Harr.  66;  Lefevre  v. 
Murdock,  Wright,  205 ;  Baxter  v.  Bodkin,  25  Ind.  172 ;  Bressler  v.  Kent,  61  111. 
426;  Cope  v.  Meeks,  3  Head,  388;  Goodright  v.  Straphan,  Cowp.  201. 

*  See  ante,  sect.  469. 

613 


§     794  THE    REQUISITES    OF    A    DEED.  [PART    III. 

singlewomen.1  In  Massachusetts  the  separate  deed  of  a 
married  woman  will  be  good  for  every  other  purpose  except 
to  convey  the  husband's  right  of  curtesy  therein.2  And 
perhaps  it  may  be  doubtful  in  some  of  the  other  States, 
where  statutes  of  this  character  have  been  passed,  whether 
it  is  not  still  necessary  for  the  husband  to  join  in  the  execu- 
tion of  the  deed,  in  order  to  bar  his  right  of  curtesy.  In 
New  York  the  husband's  curtesy  is  barred  by  the  separate 
conveyance  of  the  wife.3  At  common  law  the  only  mode 
of  conveying  the  wife's  property  was  by  levying  a  fine.* 
Subsequently,  by  statute,  3  &  4  Wm.  IV.,  ch.  74,  a  joint 
conveyance  of  husband  and  wife,  when  properly  acknowl- 
edged, was  made  sufficient  to  convey  her  estate,  thus  doing 
away  with  the  necessity  of  the  fine.5  And  still  later,  in 
1874,  by  statute  37  &  38  Vict.,  cb.  78,  when  any  estate  shall 
be  vested  in  a  married  woman  as  a  bare  trustee,  she  may 
convey  it  as  freely  as  if  she  were  a  feme  sole.6  But  in  this 
country  fines  and  recoveries  were  never  recognized  as  modes 
of  conveying  the  interests  of  married  women,  and  instead 
thereof  it  has  from  the  earl}'  colonial  days  become  customary 
in  the  United  States  for  married  women  to  convey  their  real 
estate  by  deed,  in  which  their  husbands  joined.  This  cus- 
tom has  been  generally  recognized  wherever  the  common- 
law  disability  still  prevails,  and  has  been  adopted  as  law 
and  incorporated  into  the  statutes  of  the  different  States.7 
In  some  of  the  States  certain  forms  of  conveyance  and 

1  See  ante,  sect.  94. 

2  Beal  v.  Warren,  2  Gray,  458;  Willard  v.  Eastham,  15  Gray,  334;  Camp- 
bell v.  Bemis,  16  Gray,  487. 

3  Yale  v.  Dederer,  22  N.  Y.  460;  Hatfield  v.  Sneden,  54  X.  Y.  287. 
*  3  Washb.  on  Real  Prop.  252  ;  Williams  on  Real  Prop.  229,  230. 

5  Williams  on  Real  Prop.  230. 

6  Williams  on  Real  Prop.  232. 

7  Fowler  v.  Shearer,  7  Muss.  14  ;  Lithgow  v.  Kavanagh,  9  Mass.  161 ;  Gor- 
don v.  Haywood,  2  N.  H.  402;  Jackson  v.  Gilchrist,  15  Johns.  110;  Davey  v. 
Turner,  1  Dall.  11;  Lloyd's  Lessees  v.  Taylor,  1  Dall.  17;  3  Washb.  on  Real 
Prop.  252 ;  Williams  on  Real  Prop.  231,  Rawle's  note ;  4  Kent's  Com.  152, 
154. 

614 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    794 

modes  of  execution  are  prescribed  by  statute,  and  in  those 
States  a  strict  compliance  with  the  requirements  of  the 
statute  is  necessary ;  if  it  is  not  executed  according  to  the 
statute  the  conveyance  will  be  void.1  In  some  of  the  States 
it  is  required  that  she  be  examined  privately  by  an  officer 
authorized  to  take  oaths,  and  the  deed  acknowledged  by  her 
as  her  free  act  and  deed,  and  she  is  generally  required  to 
state  further,  that  her  husband  has  not  by  any  means  of  in- 
timidation prevailed  upon  her  to  execute  it  against  her  will.2 
In  the  New  England  States,  and  some  others,  a  privy  ex- 
amination is  not  required,  a  simple  acknowledgment  being 
sufficient,  and  in  some  of  the  States  the  joint  conveyance 
may  be  made  by  separate  deeds.3  It  is  also  generally  nec- 
essary that  the  deed,  in  order  to  pass  the  wife's  property, 
must  contain  words  of  grant  which  expressly  or  impliedly 
refer  to  her,  and  proceed  from  her.  Merely  signing  a  deed, 
in  which  the  husband  is  represented  as  conveying  his  right 
or  interest  in  the  property,  will  not  make  it  her  deed.  She 
must  be  joined  with  him  in  the  operative  words  of  the  deed.4 
But  generally  there  will  be  a  sufficient  joining  of  the  hus- 

1  Hepburn  v.  Dubois,  12  Pet.  375;  El  wood  v.  Black,  13  Barb.  50;  Askew  v. 
Daniel,  5  Ired.  Eq.  321 ;  Reaume  v.  Chambers,  22  Mo.  36;  Mariner  v.  Saun- 
ders, 10  111.  113  ;  Garrett  v.  Moss,  22  111.  363 ;  Morrison  v.  Wilson,  13  Cal.498. 

2  Albany  Fire  Ins.  Co.  v.  Bay,  4  N.  Y.  9 ;  Dundas  v.  Hitchcock,  12  How. 
256 ;  Elliott  v.  Pearce,  20  Ark.  508 ;  Askew  v.  Daniel,  5  Ired.  Eq.  321 ;  Doe  v. 
Eridge,  3  McLean,  245;  Applegate  v.  Gracy,  9  Dana,  214;  Scott  v.  Purcell,  7 
Blackf.  66;  Barton  v.  Morris,  5  Ohio,  408;  Garrett  v.  Moss,  22111.  363;  Lyon 
v.  Kain,  36  111.  370 ;  Bours  v.  Zachariah,  11  Cal.  281 ;  Sanders  v.  Bolton,  26  Cal. 
408;  8  Washb.  on  ReafProp.^S,  256. 

3  4  Greenl.  Cruise,  19,  note ;  3  Washb.  on  Real  Prop.  254,  255 ;  2  Kent's 
Com.  150-154;  Shepherd  v.  Howard,  2  N.  H.  507;  Lawyer  v.  Slingerland,  11 
Minn.  458. 

4  Agricultural  Bank  v.  Rice,  4  How.  225;  Dundas  v.  Hitchcock,  12  How. 
256;  Lithgow  v.  Kavanagh,  9  Mass.  173;  Lufkin  v.  Curtis,  13  Mass.  223; 
Dodge  v.  Nichols,  5  Allen,  548;  Raymond  v.  Holden,  2  Cush.  264;  Melvin  v. 
Prop'rs  of  Locks  and  Canals,  16  Pick.  137;  Learned  v.  Cutler,  18  Pick.  9; 
Frost  v.  Deering,  21  Me.  15G ;  Whiting  v.  Stevens,  4  Conn.  44;  Cincinnati  v. 
Newhall,  7  Ohio  St.  37;  Purcell  v.  Goshorn,  17  Ohio,  105;  Cox  v.  Wells,  7 
Blackf.  410;  Stearns  v.  Swift,  8  Pick.  532. 

615 


§    795  THE    REQUISITES    OF    A    DEED.  [PART    III. 

band  in  the  deed  if  he  signs  it.  It  is  not  necessary  for  him 
to  be  mentioned  in  the  deed  as  one  of  the  grantors.1  And 
where  both  are  mentioned  as  grantors  the  deed  may  be  made 
to  convey  not  only  her  property,  but  also  his  independent 
interests  in  the  same.2  In  several  of  the  States  it  is  pro- 
vided by  statute  that  a  married  woman  will  have  the  powers 
and  capacity  of  single  women,  if  her  husband  has  deserted 
her,  or  has  been  consigned  to  prison,  or  has  become  inca- 
pable of  executing  deeds  from  any  other  cause.3  It  is  im- 
possible to  present  within  any  narrow  compass  the  details 
of  the  law  in  respect  to  property  rights  of  married  women, 
as  it  prevails  in  the  different  States.  Reference  must  be 
had  to  the  statutes  and  decisions  of  the  State  in  which  the 
question  arises. 

§  795.  A  disseisee  cannot  convey. — Another  requisite 
under  the  head  of  competent  grantors  is,  that  the  grantor  is 
seised  at  the  time  of  the  conveyance.  If  the  land  is  in  the 
adverse  possession  of  another,  disseisin  leaving  nothing  in 
him  but  a  chose  in  action,  the  grantor  is  prohibited  at  com- 
mon law  from  conveying  this  interest.  This  prohibition  has 
been  retained  in  a  number  of  the  States,  to  which  reference 
is  made  in  the  cases  cited  below.4     It  has  also  been  held  that 

1  Hills  v.  Bearse,  9  Allen,  406 ;  Elliott  v.  Sleeper,  2  N.  H.  525 ;  Woodward  r. 
Seaver,  38  N.  H.  29 ;  Stone  v.  Montgomery,  35  Miss.  83 ;  Ingold  sby  v.  Juan, 
12  Cal.  564. 

2  Needhamv.  Judson,  101  Mass.  161. 

8  4  Greenl.  Cruise,  19,  20 ;  Gregory  v.  Pierce,  4  Mete.  478 ;  Abbott  v.  Bay- 
ley,  6  Pick.  89 ;  Boyce  v.  Owens,  1  Hill  (  S.  C.)  8. 

*  Hathorne  v.  Haines,  1  Me.  238 ;  Foxcroft  v.  Barnes,  29  Mich.  128 ;  Parker 
v.  Prop'rs,  etc.,  3  Mete.  98 ;  Wade  v.  Lindsey,  6  Mete.  407 ;  Sohier  v.  Coffin, 
101  Mass.  179 ;  Park  v.  Pratt,  38  Vt.  563 ;  White  v.  Fuller,  38  Vt.  204 ;  Dame 
v.  Wingate,  12  N.  H.  291 ;  Thurman  v.  Cameron,  24  Wend.  87  ;  Den  v.  Shearer, 
1  Murpb.  114;  Hoyle  v.  Logan,  4  Dev.  494;  Gresham  v.  Webb,  29  Ga.  320; 
Helms  v.  May,  29  Ga.  124;  Jones  v.  Monroe,  32  Ga.  188;  Betsey  v.  Torrance, 
34  Miss.  132 ;  Ewing  v.  Savary,  4  Bibb,  424 ;  Webb  v.  Thompson,  23  Ind.  432 ; 
German  Ins.  Co.  v.  Grim,  32  Ind.  257 ;  Stockton  v.  Williams,  1  Dougl.  (Mich.) 
646 ;  Granger  v.  Swart,  1  Woolw.  C.  C.  91. 
616 


CH.  XXII.  j  THE   REQUISITES    OF   A   DEED.  §    795 

the  disseisin  of  a  mortgagor  will  invalidate  the  mortgage 
and  the  assignment  of  it  by  the  mortgagee.1  But  the  deed 
is  only  void  against  the  parties  in  adverse  possession  at  the 
time  of  the  conveyance.  As  against  the  rest  of  the  world 
and  between  the  parties  to  the  deed,  it  is  good.2  And  al- 
though the  legal  title,  as  against  the  disseisor,  remains  in  the 
grantor  unaffected  by  the  grant,  the  grantee  acquires  such 
an  interest  in  the  land  as  will  enable  him  to  claim  the  land 
against  the  grantor,  and  maintain  his  action  of  ejectment 
against  the  disseisor  in  the  name  of  the  grantor.3  But  it  is 
always  competent  for  the  grantor  to  make  a  good  convey- 
ance of  lands  in  the  adverse  possession  of  another  by  enter- 
ing upon  the  land  and  delivering  the  deed  there.  His  entry 
restores  the  seisin  to  him  for  the  time  being,  and  interrupts 
the  continuity  of  the  adverse  possession.4  This  doctrine 
does  not  apply  to  incorporeal  hereditaments,  nor  to  such 
adverse  possession  of  strips  of  land  arising  from  a  mistake 
as  to  the  boundaries.5  And  since  a  State  cannot  be  disseised, 
no  adverse  possession  will  invalidate  its  deed  of  convey- 
ance.6 These  principles  prevail  generally  in  this  country, 
but  in  some  of  the  States  the  entire  doctrine  has  been  re- 


1  "Williams  v.  Baker,  49  Me.  428. 

2  Wade  v.  Lindsey,  6  Mete.  407;  Farmer  v.  Peterson,  111  Mass.  151;  Ed- 
wards v.  Roys,  18  Vt.  473;  White  v.  Fuller,  38  Vt.  204;  Park  v.  Pratt,  38  Vt. 
553 ;  Livingston  v.  Prosens,  2  Hill,  526 ;  Livingston  v.  Peru  Iron  Co.,  9  Wend. 
511 ;  Stockton  v.  Williams,  1  Dougl.  (Mich.)  546;  Betsey  v.  Torrance,  34  Miss. 
138. 

s  Brinley  v.  Whiting,  5  Pick.  348;  Sohier  v.  Coffin,  101  Mass.  179;  Wade 
v.  Lindsey,  6  Mete.  413 ;  Jackson  v.  Leggett,  7  Wend.  380 ;  Livingston  v.  Peru 
Iron  Co.,  9  Wend.  523  ;  Edwards  v.  Parkhurst,  21  Vt.  472 ;  Wilson  v.  Nance, 
11  Humph.  191 ;  Kincaid  v.  Meadows,  3  Head,  192;  Betsey  v.  Torrrance,  34 
Miss.  138;  Stockton  v.  Williams,  1  Dougl.  (Mich.)  546;  Shortall  v.  Hinckley, 
31  111.  219. 

*  Farwell  v.  Rogers,  99  Mass.  36 ;  Warner  v.  Bull,  13  Mete.  4. 

6  Corning  v.  Troy  Iron  Factory,  40  N.  Y.  191 ;  Cleveland  v.  Flagg,  4  Cush. 
76 ;  Sparhawk  v.  Bogg,  16  Gray,  585. 

6  Ward  v.  Bartholomew,  6  Pick.  409 ;  People  v.  Mayor,  etc.,  28  Barb.  240. 

617 


§    796  THE    REQUISITES    OF   A    DEED.  [PART    III. 

pudiated,  and  it  is  there  held  that  disseisin  does  not  in  any 
way  affect  the  capacity  of  the  grantor  to  convey.1 

§  796.  Fraud  and  duress. — Not  only  must  there  be  a 
grantor  capable  of  making  a  conveyance,  but  the  deed  must 
be  a  free  and  voluntary  act.  If,  therefore,  he  is  induced 
by  fraud,  or  forced  by  threats  of  personal  injury,  to  make 
a  conveyance  which  he  would  not  otherwise  have  made,  the 
deed  is  voidable.  By  restoring  the  consideration  he  may, 
within  a  reasonable  time  after  the  discovery  of  the  fraud, 
or  after  he  is  removed  from  the  threatened  danger,  disaffirm 
the  deed,  and  recover  the  land.2  What  will  constitute  such 
a  duress  as  to  avoid  a  deed  made  while  under  its  influence, 
is  a  question  which  is  determined  by  the  facts  of  each  case. 
It  must  be -such  a  duress  as  will  seriously  interfere  with,  or 
take  away,  the  will  power  of  the  grantor.  According  to 
the  United  States  Court,  "unlawful  duress  is  a  good  de- 
fence if  it  includes  such  a  degree  of  constraint  or  danger, 
either  actually  inflicted  or  threatened  and  impending,  as  is 
sufficient  in  severity  or  apprehension  to  overcome  the  mind 
and  will  of  a  person  of  ordinary  firmness."  3  In  New  Hamp- 
shire it  was  held  necessary  that  the  duress  must  raise  the 
apprehension  of  loss  of  life,  limb  or  personal  liberty  ; 4  while 
it  has  been  held  sufficient  duress  that  a  wife  signed  under 
threats  of  abandonment  by  the  husband,  and  in  another  case 
under  a  threat  of  criminal  prosecution  against  her  husband.5 
Perhaps  no  better  rule  can  be  laid  down  than  that  which  is 

1  Cresson  v.  Miller,  2  Watts,  272 ;  Poyas  v.  Wilkins,  12  Rich.  420 ;  Bennett 
v.  Williams,  5  Ohio,  461;  Shortall  v.  Hinckley,  31  111.219;  Fetrow  v.  Merri- 
weather,  53  111.  279;  Stewart  v.  McSweeney,  14  Wis.  471 ;  Crane  v.  Reeder,  21 
Mich.  82. 

2  2  Bla.  Com.  291 ;  3  Washb.  on  Real  Prop.  260 ;  Worcester  v.  Eaton,  13 
Mass.  371 ;  Bassett  v.  Brown,  105  Mass.  551 ;  Fisk  v.  Stubbs,  30  Ala.  335 ;  Dep- 
uty v.  Stapleford,  19  Cal.  302. 

3  United  States  v.  Huckabee,  16  Wall.  423. 
*  Evans  v.  Gale,  18  N.  H.  401. 

5  Eddie  v.  Slimmons,  26  N.  Y.  12 ;  Topley  v.  Topley,  10  Minn.  460. 
618 


CH.  XXII.]  THE    REQUISITES    OF    A   DEED.  §    797 

taken  from  the  United  States  Supreme  Court,  regard  being 
had,  in  its  application  to  particular  cases,  to  the  age,  con- 
dition and  sex  of  the  parties. 

§  797.  Proper  parties — Grantees;  —  All  persons,  as  a 
general  rule,  are  able  to  take  property  as  grantees,  infants, 
persons  non  compotes  mentis,  married  women,  corporations, 
etc.1  But  from  the  necessity  of  the  case,  if  these  convey- 
ances are  coupled  with  a  condition  imposing  duties  upon  the 
grantee,  or  contain  covenants  of  the  grantee,  the  grantee 
under  disability  cannot  be  compelled  to  perform  them .  And 
if  in  consequence  of  his  failure  to  perform  the  conveyance 
may  be  avoided,  the  grantor's  only  remedy  is  to  recover 
the  land.  But  in  respect  to  married  women,  it  seems  that 
the  assent  of  the  husband  is  necessary  at  common  law  to 
make  the  conveyance  to  the  wife  valid.  The  deed  isother- 
erwise  void.  And  if  he  assents  to  the  conveyance  neither 
she  nor  her  heirs  can  disaffirm  the  deed  after  his  death.2 
Lord  Coke  maintains  that  the  assent  of  the  husband  does 
not  prevent  a  disclaimer  by  the  wife  after  his  death.3  The 
statutes  of  mortmain  in  England  prohibit  corporations  from 
taking  lands  by  purchase,  unless  specially  authorized.  But 
these  statutes  have  never  prevailed  in  this  country,  except 
in  Pennsylvania,  and,  therefore,  corporations  are  free  to 
purchase  lands  to  any  amount,  unless  specially  restrained 
by  their  charters,  or  by  the  general  laws  under  which  the 
incorporation  was  obtained.  It  is  customary,  however,  to 
limit  the  amount  of  real  property  which  a  corporation  may 
hold,  and  the  State  may  confiscate  whatever  lands  it  ac- 

1  3  Washb.  on  Keal  Prop.  267 ;  Sutton  v.  Cole,  3  Pick.  332 ;  Melvin  v. 
Prop'rs,  etc.,  16  Pick.  167;  Concord  Bunk  v.  Bellis,  10  Cush.  278;  Peavey  v. 
Tilton,  18  N.  H.  152;  Spencer  v.  Carr,  45  N.  Y.  410;  Mitchell  v.  Eyan,  3  Ohio 
St.  387  ;  Rivard  v.  Walker,  39  111.  413 ;  Cecil  v.  Beaver,  28  Iowa,  241. 

2  Co.  Lit.  3  a;  Butler  v.  Baker,  3  Rep.  26;  Whelpdale's  Case,  5  Rep.  119; 
Melvin  v.  Prop'rs,  etc.,  16  Pick.  167  ;  Foley  v.  Howard,  8  Clarke,  36. 

s  Co.  Lit.  3  a. 

619 


§     798  THE    REQUISITES    OF   A   DEED.  [PART   III. 

quires  above  the  limit.  But  if  the  land  exceeds  the  limit  in 
consequence  of  the  rise  in  value,  it  will  not  be  subject  to 
forfeiture.1  For  the  grant  of  an  immediate  estate  in  pos- 
session, it  is  necessary  that  the  grantee  be  in  esse,  and  if  it 
be  shown  that  the  grantee  came  into  being  after  the  convey- 
ance, it  will  avoid  the  deed.2  But  this  is  not  necessary  in 
the  grant  of  remainders  and  future  contingent  estates.3 

§  798.  Proper  parties  named  in  the  deed.  —  Not  only 
must  there  be  proper  parties,  grantor  and  grantee,  but  they 
must  be  named  in  the  deed.  Names  are  necessary  to  dis- 
tinguish the  parties,  and  render  certain  who  are  the  grantor 
and  grantee.  The  object,  therefore,  is  attained  if  any  name 
is  used,  not  necessarily  the  true  name,  provided  means  are 
provided  in  the  deed  for  ascertaining  the  true  parties.  A 
man  may  be  described  b}'  his  office  or  by  his  relation  to  a 
certain  person.4  And  a  mistake  in  the  Christian  name  or 
the  use  of  different  names  in  different  parts  of  the  deed  is 
not  fatal,  provided  the  uncertainty  arising  therefrom  is  not 
incurable.  If  the  true  party  can  be  ascertained,  the  deed 
will  be  good.5  A  deed  to  a  fictitious  person,  or  to  one  by 
his  surname  only,  without  further  means  of  identifying  the 

*  3  Washb.  on  Real  Prop.  267;  Bogardus  v.  Trinity  Church,  4  Sandf.  Ch. 
633.  In  this  case  the  property,  when  acquired  by  the  corporation,  yielded  an 
income  of  £30,  and  by  the  remarkable  rise  in  the  value  of  real  estate  in  the 
city  of  New  York  the  income  was  increased  to  $300,000. 

2  3  Washb.  on  Real  Prop.  266  ;  Hulick  v.  Scovil,  4  IJ1.  191 ;  Miller  v.  Chit- 
tenden, 2  Iowa,  368. 

3  Hall  v.  Leonard,  1  Pick.  27 ;  Morris  v.  Stephens,  46  Pa.  St.  200 ;  Huss  v. 
Stephens,  51  Pa.  St.  282 ;  3  Washb.  on  Real  Prop.  266,  267. 

*  A  grant  to  the  heirs  of  A.,  A.  being  dead,  is  good,  for  it  is  possible  to  as- 
certain who  are  the  heirs  of  A.  Hogan  v.  Page,  2  Wall.  607 ;  Ready  v.  Kears- 
ley,  14  Mich.  225 ;  Cook  v.  Sinnamon,  47  111.  2 1 4 ;  Boone  ».  Moore,  14  Mo.  420. 
A  grant  to  A.  and  his  partners  has  also  been  held  good.  Hoffman  v.  Porter, 
2  Brock.  156;  Morse  v.  Carpenter,  19  Vt  613.  Contra,  Arthur  v.  Weston,  22 
Mo.  378.  See  also,  generally,  Dr.  Ayray's  Case,  11  Rep.  20 ;  Sir  Moyle  Finch's 
Case,  6  Rep.  65;  Shaw  v.  Loud,  12  Mass.  447. 

5  Boothroj'd  v.  Engles,  23  Mich.  21 ;  Tostin  v.  Faught,  23  Cal.  237  ;  Middle- 
ton  v.  Findla,  25  Cal.  80. 
620 


CH.  XXII.]  THE   REQUISITES   OF  A   DEED.  §    799 

person  intended,  would  be  void  for  uncertainty.1  But  it 
has  been  held  that  where  the  Christian  name  is  left  blank, 
the  grantee,  being  in  possession  of  the  deed,  may  show  by 
parol  evidence  that  he  was  the  person  intended.2  The  law 
knows  only  one  Christian  name.  The  omission  of  the  mid- 
dle name  is,  therefore,  not  material;  neither  is  a  mistake 
in  calling  the  party  senior,  when  he  is  the  junior  of  that 
name.3  In  the  same  manner  a  mistake  in  the  Christian 
name  may  be  explained  by  a  reference  to  the  other  parts  of 
the  deed.4  There  is  the  same  necessity  of  naming  in  the 
deed  the  person  who  is  to  take  the  equitable  interest  under 
it  as  to  name  the  grantee  of  the  legal  estate.5  And  if  a 
grant  is  made  to  trustees  of  an  unincorporated  corporation, 
the  persons  named  as  trustees  take  individually  and  not  as 
trustees.6  And  where  there  is  a  person  named  in  the  deed 
as  the  grantee  of  the  immediate  estate,  the  remainder-man 
under  the  deed  need  not  be  made  a  party  to  the  deed,  al- 
though he  must  be  named  or  sufficiently  described."  Finally, 
in  order  that  a  deed  may  be  valid,  there  must  be  a  definite 
deed,  an  ascertained  grantor  and  grantee,  and  if  there  is  an 
incurable  uncertainty  as  to  either,  arising  from  the  terms  of 
the  deed,  it  will  be  void.8 

§  799.  A  thing  to  be  granted.  —  In  order  that  there  may 
be  a  conveyance,  there  must  be  a  thing  to  be  conveyed,  and 

1  Fanshaw's  Case,  F.  Moore,  229 ;  Jackson  v.  Corey,  8  Johns.  388 ;  Horn- 
beck  v.  Westbrook,  9  Johns.  74;  Muskingum  Turnpike  v.  Ward,  13  Ohio,  120. 

2  Fletcher  v.  Mansur,  5  Ind.  269.     See  Morse  v.  Carpenter,  19  Vt.  615. 

3  Games  v.  Stiles,  14  Pet.  322;  Dunn  v.  Games,  1  McLean,  321;  Franklin 
v.  Tallmadge,  5  Johns.  84. 

*  3  Washb.  on  Eeal  Prop.  265. 

5  German  Ass'n  v.  Scholler,  10  Minn.  331.  See  ante,  sect.  445  and  vost, 
sects.  883,  884. 

6  Austin  v.  Shaw,  10  Allen,  552 ;  Brown  v.  Combs,  29  N.  J.  L.  36 ;  Tower 
v.  Hale,  46  Barb.  361 ;  Den  v.  Hay,  21  N.  J.  L.  174.  See  post,  sects.  883,  884, 
in  reference  to  the  devises  to  unincorporated  bodies. 

7  Hornbeck  v.  Westbrook,  9  Johns.  73 ;  Hunter  v.  Watson,  12  Cal.  363. 

8  Jackson  v.  Corey,  8  Johns.  388 ;  Hornbeck  v.  Westbrook,  9  Johns.  74. 

621 


§    799  THE    REQUISITES    OF    A   DEED.  [PART    III. 

this  must  be  sufficiently  described  in  the  deed,  so  as  to  be 
capable  of  easy  identification.1  It  may  now  be  stated  as  a 
general  rule,  subject  to  a  few  exceptions  to  be  mentioned 
hereafter,  that  every  freehold  interest  in,  or  issuing  out  of, 
lands  must  and  can  only  be  conveyed  by  deed.2  And  what- 
ever is  created  hy  deed,  can  only  be  transferred  by  deed.3 
Not  only  must  estates  in  the  land  itself  be  conveyed  by 
deed,  but  incorporeal  hereditaments  of  a  freehold  character, 
Easements,  profits  a  prendre,  the  mines  and  other  deposits 
upon  the  land  apart  from  the  soil,  all  require  a  deed  to  be 
Granted.4  It  has  been  a  much  debated  question  whether,  to 
pass  the  title  to  growing  or  standing  trees,  it  is  necessary 
that  the  sale  should  be  made  by  writing.  Some  authorities 
hold,  notably  the  English  courts,  that  if  the  sale  contem- 
plates the  immediate  removal  of  the  trees,  it  is  not  necessary 
that  it  should  be  done  by  deed  or  other  instrument  in  writ- 
ing, since  it  can  and  ought  to  be  considered  a  sale  of  chattels 
rather  than  an  interest  in  the  freehold.5     On  the  other  hand, 

1  See  post,  sects.  827-841,  for  a  discussion  of  the  usual  elements  of  a  de- 
scription of  the  land,  and  for  what  is  a  sufficient  description. 

2  3  Washb.  on  Heal  Prop.  341.  Mr.  Washburn,  on  the  page  referred  to, 
says  that  "since  the  Statute  of  Frauds  (29  Charles  II.  ch.  3),  a  deed  has  been 
required,  in  order  to  convey  a  freehold,  in,  to,  or  out  of  any  messuages,  manors, 
lands,  tenements,  or  hereditaments."  The  Statute  of  Frauds  only  requires 
such  conveyances  to  be  put  in  writing,  and  does  not  require  a  deed.  When 
this  section  (700)  was  written,  the  author  had  entertained  the  generally  pre- 
vailing idea  that  a  deed,  i.e.,  an  instrument  in  writing  under  seal,  was  neces- 
sary to  convey  all  freehold  interests  in  lands,  and  had  not  yet  written  section  783, 
in  which  the  contrary  position,  with  qualifications,  has  been  assumed.  Inasmuch 
as  a  deed  is  necessary  in  the  conveyance  of  very  many  freehold  interests  —  for 
example,  incorporeal  hereditaments —  the  present  section  has  not  been  altered  ; 
but  the  statements  made  there  and  elsewhere  must  be  read  in  the  light  of  sec- 
tion 783. 

3  3  Washb.  on  Real  Prop.  341. 

4  3  Washb.  on  Real  Prop.  341.     See  ante,  sect.  783. 

5  Smith  v.  Surman,  9B.&C.  561  :  Evans  v.  Roberts,  5  B.  &  C.  829;  Mar- 
shall v.  Green,  33  L.  T.  Rep.  (x.  s.)  404  ;  Bostwick  v.  Leach,  3  Day,  476.  But 
in  Rodwellu.  Phillips,  9  Mees.  &  W.  505,  contra,  the  court  say:  "It  must  be 
admitted,  taking  the  cases  altogether,  that  no  generil  rule  is  laid  down  in  any 
one  of  them  that  is  not  contradicted  by  some  other." 

622 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    799 

the  courts  of  this  country  generally  hold  that  standing  trees 
are  "  a  part  of  the  inheritance,  and  can  only  become  per- 
sonalty by  actual  severance,  or  by  severance  in  contempla- 
tion of  law  as  the  effect  of  a  proper  instrument  in  writing.1 
A  sale  of  standing  trees  is  a  twofold  contract.  It  includes 
a  sale  of  trees  when  severed  from  the  land,  which  must 
necessarily  be  executory  in  its  character,  and  a  license  to  go 
upon  the  land  and  remove  them.  Until  a  severance  has 
been  made,  the  only  vested  interest  which  the  vendee  has  is 
the  license,  and  it  being  an  interest  in  land,  it  is  revocable 
unless  granted  by  a  proper  instrument  of  conveyance. 
Where  the  license  is  of  a  definite  duration,  it  being;  then  a 
leasehold  interest  in  the  land,  a  deed  strictly  so-called  will 
not  be  necessary.  But  if  it  is  indefinite,  it  becomes  a  free- 
hold interest  in  lands,  and  requires  a  deed  to  grant  it.? 
Standing  trees  and  other  things  growing  upon  the  land  cer- 
tainly pass  with  the  conveyance  of  the  freehold,  unless  ex- 
pressly excepted.3  If,  therefore,  a  sale  is  made  of  standing 
trees  with  a  parol  license  to  enter  and  cut  them,  it  does  not 
prevent  the  title  to  the  trees  from  passing  to  a  subsequent 
grantee  ;  the  license  by  such  subsequent  conveyance  is  re- 
voked, and  the  licensee  is  left  to  his  remedy  against  his 

Slocum  v.  Seymour,  36  N.  J.  139;  Trull  v.  Fuller,  28  Me.  548;  Green  v. 
Armstrong,  1  Denio,  550;  McGregor  v.  Brown,  10  N.  Y.  117;  Vorebeck  v. 
Koe,  50  Barb.  305;  Claflin  v.  Carpenter,  4  Mete.  580;  Parsons  v.  Smith,  5 
Allen,  580;  Giles  v.  Simonds,  15  Gray,  441;  Delaney  v.  Eoot,  99  Mass.  548; 
Poor  v.  Oakman,  104  Mass.  316 ;  White  v.  Foster,  102  Mass.  |378 ;  Buck  v. 
Pickwell,  27  Vt.  164. 

2  Clap  v.  Draper,  4  Mass.  266;  Green  v.  Armstrong,  1  Denio,  554;  Kings- 
ley  v.  Holbrook,  45  N.  H.  313 ;  Howe  v.  Batchelder,  49  N.  H.  208 ;  Sterling  v. 
Baldwin,  42  Vt.  308;  Huff  v.  McCauley,  58  Pa.  St.  210;  Pattison's  Appeal,  61 
Pa.  St.  297. 

8  Bracket  v.  Goddard,  54  Me.  313;  Noble  v.  Bosworth,  19  Pick.  314;  Mott 
v.  Palmer,  1  N.  Y.  564;  Goodrich  v.  Jones,  2  Hill,  142  ;  Terhaw  v.  Ebberson, 
1  Pa.  St.  726;  Cook  v.  Whiting,  16  111.  481.  But  Chancellor  Kent  maintains 
that  growing  crops  do  not  pass  with  the  grant  of  the  bind.  4  Kent's  Com.  468  ; 
Smith  v.  Johnston,  1  Pa.  St.  471.  See  Foote  v.  Colvin,  3  Johns.  216;  Kitt- 
redge  v.  Wood,  3  N.H.  503;  Turner  v.  Reynolds,  23  Pa.  St.  199;  Chapman. 
v.  Long,  10  Ind.  465;  Mcllvaine  v.  Harris,  20  Mo.  467. 

fi23 


§801  THE    REQUISITES    OF    A    DEED.  [PART    III. 

licenser  for  the  breach  of  his  executory  contract.1  Some  of 
the  courts  are  also  inclined  to  treat  the  sale  of  annual  crops 
as  the  sale  of  chattels  instead  of  an  interest  in  lands.  This 
is  undoubtedly  the  correct  theory,  qualified,  however,  by 
the  statement  that  the  sale  must  be  evidenced  by  some 
writing,  in  order  to  give  to  the  vendee  any  vested  interest 
during  the  growth  of  the  crop.  But  since  the  license  is 
only  for  a  year,  or  less  than  a  year,  any  writing  will 
suffice.2 

§  800.  A  thing- to  be  granted  —  Continued. — A  mere 
possibility.  —  A  further  qualification  of  the  above  stated 
general  rule  is,  that  there  cannot  be  a  grant  of  a  mere  possi- 
bility, unless  coupled  with  a  vested  interest.  It  must  be  a 
vested  present  future  estate.3  But  this  rule  is  not  now  en- 
forced so  rigidly  as  formerly.  Thus,  the  deed  of  an  heir 
apparent  conveying  his  ancestor's  estates  has  been  held  to 
attach  in  equity  to  the  estate  upon  the  death  of  the  ancestor.4 
Also  a  grant  by  a  soldier  of  bounty  lands  to  be  thereafter- 
wards  given  to  him  by  the  government.5  And  a  further 
modification  is  attained  by  the  application  of  the  doctrine 
of  estoppel  arising  on  a  covenant  of  title  in  the  deed.6 

§  801.  The  consideration.  —  It  is  sometimes  stated  as  a 
general  proposition  that  a  consideration,  good  or  valuable, 

1  Whitmarsh  v.  Walker,  1  Mete.  313;  Giles  v.  Simonds,  15  Gray,  441. 

2  Crosby  v.  Wadsworth,  6  East,  602 ;  Waddington  v.  Bristow,  2  B.  &  P. 
452;  Warwick  v.  Bruce,  2  M.  &  S.  205;  Evans  v.  Roberts,  5  B.  &  C.  836; 
Whipple  v.  Foote,  2  Johns.  418 ;  Stewart  v.  Doughty,  9  Johns.  108 ;  Austin  v. 
Sawyer,  9  Cow.  40;  Green  v.  Armstrong,  1  Denio,  554;  Powell  v.  Rich,  31  111. 
469 ;  Graff  v.  Fitch,  58  111.  377. 

3  Fulwood's  Case,  4  Rep.  66;  Davis  v.  Hayden,  9  Mass.  519;  Trull  r.  East- 
man, 3  Mete.  121 ;  Jackson  v.  Catlin,  2  Johns.  261 ;  Dart  v.  Dart,  7  Conn.  255; 
Bayler  v.  Commonwealth,  40  Pa.  St.  37  ;  3  Washb.  on  Real  Prop.  348. 

4  Stover  v.  Eycleshimer,  46  Barb.  84;  Trull  v.  Eastman,  3  Mete.  121.  See 
also  ante,  sects.  727,  728. 

6  Jackson  v.  Wright,  14  Johns.  193. 
6  See  ante,  sects.  727,  728. 
624 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    801 

is  necessary  to  be  acknowledged  or  proved,  in  order  to  pass 
the  title  to  real  estates.  Without  qualification  and  expla- 
nation, this  is  incorrect  and  misleading.  All  common-law 
conveyances,  properly  so-called,  which  operate  by  transmu- 
tation of  possession,  or  as  grants,  such  as  feoffments,  re- 
leases, etc.,  and  modern  statutory  conveyances,  where  the 
statute  does  not  provide  otherwise,  will  be  effectual  to  pass 
the  legal  estate  of  any  interest  in  lands,  and,  except  in  the 
case  of  the  grant  of  a  fee  by  a  common-law  conveyance, 
the  equitable  estate  also,  without  resting  upon  any  consid- 
eration whatever.1  And  where  a  deed  can  operate  both  as 
a  common-law  conveyance  and  as  a  conveyance  under  the 
Statute  of  Uses,  the  want  of  a  consideration  will  not  pre- 
vent it  from  passing  the  legal  title  as  a  common-law  con- 
veyance.2 A  common-law  conveyance  passes  the  legal  title 
without  a  consideration,  but  if  the  estate  granted  is  a  fee 
simple,  since  it  is  presumed  under  the  doctrine  of  resulting 
uses  that  a  man  will  not  part  with  the  beneficial  interest  in 
real  property  without  receiving  some  consideration  therefor, 
the  use  or  equitable  interest  therein  results  to  the  grantor, 
and  the  Statute  of  Uses  draws  the  legal  seisin  out  of  the 
grantee  and  revests  it  in  the  grantor.3  But  this  is  merely 
a  legal  presumption,  and  may  be  rebutted  by  other  evidence 
appearing  in  the  deed  and  showing  a  contrary  intention  on 
the  part  of  the  grantor.4  For  this  reason  it  is  customary  in 
Massachusetts,  and,  perhaps,  in  other  States,  in  the  ordinary 
deed  to  grant  the  premises  to  the  grantee  and  his  heirs,  to 

1  Green  v.  Thomas,  11  Me.  318;  Laberee  v.  Carlton,  53  Me.  212;  Boynton 
v.  Rees,  8  Pick.  332 ;  Smith  v.  Allen,  5  Allen,  458 ;  Rogers  v.  Hillhouse,  3  Conn. 
398;  Winans  v.  Peebles,  31  Barb.  380;  Taylor  v.  King,  6  Munf.  358;  Den  v. 
Hanks,  5  Ired.  30 ;  Doe  v.  Hurd,  7  Blackf.  510;  Thompson  v.  Thompson,  9 
Ind.  331 ;  Pierson  v.  Armstrong,  1  Clarke  (Iowa),  282 ;  Perry  v.  Price,  1  Mo. 
553;  Jackson  v.  Dillon,  2  Overt.  201. 

3  Cheney  v.  Watkins,  1  Harr.  &  J.  527 ;  Den  v.  Hanks,  5  Ired.  30 ;  Poe  v. 
Domec,  48  Mo.  481.     See  ante,  sects.  779,  782. 

3  See  ante,  sect.  443. 

*  See  ante,  sect.  443. 

40  (525 


§    801  THE    REQUISITES    OF    A    DEED.  [PART   III. 

his  and  their  use.  The  employment  of  the  italicised  clause 
excludes  the  idea  of  a  resulting  use.1  Mr.  Williams  says: 
"All  that  was  ultimately  effected  by  the  Statute  of  Uses 
was  to  impart  into  the  rules  of  law  some  of  the  then  existing 
doctrines  of  the  courts  of  equity,  and  to  add  three  words, 
to  the  use,  to  every  conveyance."  2  It  is,  however,  different 
with  conveyances  which  operate  under  the  Statute  of  Uses, 
such  as  bargain  and  sale,  covenant  to  stand  seised,  lease  and 
release.  For  reasons  already  explained,3  in  all  three  of 
these  conveyances  a  consideration  is  necessary,  in  order 'to 
raise  in  the  grantee  the  use  which  the  statute  is  to  execute. 
In  a  bargain  and  sale,  or  lease  and  release,  a  valuable  con- 
sideration was  necessary,  while  a  good  consideration  was 
sufficient  to  support  a  covenant  to  stand  seised.4  In  Mis- 
souri it  seems  doubtful  that  a  valuable  consideration  must 
be  acknowledged  or  proved  in  a  bargain  and  sale.6  And  in 
Tennessee  it  has  been  held  unnecessary  under  their  statute 
to  acknowledge  a  consideration  in  any  deed.6  But  if  there 
be  a  good  consideration  between  the  parties,  although  the 
deed  be  in  form  a  bargain  and  sale,  it  will  be  treated  as  a 
covenant  to  stand  seised.7  And  although  a  consideration  is 
generally  necessary  to  the  validity  of  deeds  under  the  Stat- 

1  2  Washb.  on  Real  Prop.  440;  Williams  on  Real  Prop.  188;  2  Sand, 
on  Uses,  64-69. 

8  Williams  on  Real  Prop.  159,  160. 

8  See  ante,  sects.  444,  773-776. 

*  Goodspeed  v.  Fuller,  46  Me.  141 ;  Jackson  v.  Florence,  16  Johns.  47  ;  Jack- 
son v.  Caldwell,  1  Cow.  622 ;  Jackson  v.  Delancey,  4  Cow.  427 ;  Okison  v. 
Patterson,  1  Watts  &  S.  395 ;  Boardman  v.  Dean,  84  Pa.  St.  252 ;  Cheney  v. 
Watkins,  1  Harr.  &  J.  527 ;  Den  v.  Hanks,  6  Ired.  30 ;  Wood  v.  Beach,  7  Vt. 
522 ;  Young  v.  Ringo,  1  B.  Mon.  30 ;  Webb  v.  Webb,  29  Ala.  606 ;  Kinnebrew 
v.  Kinnebrew,  35  Ala  636. 

6  Perry  v.  Price,  1  Mo.  553.  That  is,  because  the  same  deed  may  operate 
as  a  feoffment,  since  the  delivery  and  registration  of  the  deed  are  equivalent 
to  livery  of  seisin.     See  also  Poe  v.  Domec,  48  Mo.  441. 

6  Jackson  v.  Dillon,  2  Overt.  261.  See  also  Fetrow  v.  Meriweather,  53  IU- 
278. 

7  See  ante,  sects.  774-776,  782. 

626 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    801 

ute  of  Uses,  it  is  not  necessary  that  the  consideration  should 
actually  be  passed  to  the  grantor  if  the  receipt  of  a  proper 
consideration  is  acknowledged  by  him  in  the  deed.  But  it 
must  be  acknowledged  in  the  deed,  or  proved  aliunde  to 
have  actually  passed.1  The  acknowledgment  of  the  consid- 
eration is  only  prima  facie  evidence  of  the  character  and 
amount  of  the  consideration.  And  if  one  is  expressed, 
another  consideration  may  be  proved  if  it  be  not  inconsis- 
tent with  or  contradictory  of  the  one  expressed.2  But  no 
parol  evidence  will  be  admitted  to  prove  that  the  considera- 
tion acknowledged  in  the  deed  was  never  paid,  in  order  to 
invalidate  the  deed  between  the  grantor  and  grantee.3  The 
amount  acknowledged  is  presumed  to  be  the  true  considera- 
tion agreed  upon  ;  but  this  is  not  conclusive.  In  an  action 
to  enforce  the  payment  of  the  consideration  a  different 
amount  may  be  established  by  parol  evidence,  and  the  ac- 
knowledgment of  the  receipt  of  the  consideration  is  no  bar 
to  its  recovery.     The  recital  of  the  consideration  in  a  deed 

1  Jackson  v.  Alexander,  3  Johns.  434 ;  Jackson  v.  Pike,  9  Cow.  69 ;  Jack- 
ion  v.  Leek,  19  Wend.  339 ;  Jackson  v.  Schoonmaker,  2  Johns.  230;  Wood  v. 
Beach,  7  Vt.  522  ;  White  v.  Weeks,  1  Pa.  St.  486 ;  Den  v.  Hanks,  5  Ired.  30; 
Toulmin  v.  Austin,  5  Stew.  &  P.  470;  Young  v.  Kingo,  1  B.  Mon.  30.  But 
see  Boardman  v.  Dean,  34  Pa.  St.  252.  The  acknowledgment  of  a  considera- 
tion will  be  sufficient  to  raise  a  use  only  when  it  is  under  seal.  In  order, 
therefore,  that  a  bargain  and  sale  may  create  a  use  and  pass  the  legal  title  by 
an  instrument  in  writing  not  under  seal,  in  conformity  with  the  doctrine  laid 
down  in  sect.  783,  a  consideration  must  actually  pass  from  the  grantee  to 
the  grantor. 

1  Pierce  v.  Brew,  43  Vt.  295 ;  Drury  v.  Tremont,  etc.,  Co.,  13  Allen,  171 ; 
Paige  v.  Sherman,  6  Gray,  511 ;  Miller  v.  Goodwin,  8  Gray,  542 ;  Morris  Canal 
v.  Kyerson,  27  N.  J.  L.  467 ;  Parker  v.  Foy,  43  Miss.  260 ;  Toulmin  v.  Austin, 
5  Stew.  &  P.  410;  Rabsuhl  v.  Lack,  35  Mo.  316  ;  Lawton  v.  Buckingham,  15 
Iowa,  22 ;  Harper  v.  Perry,  28  Iowa,  63. 

»  Trafton  v.  Hawes,  102  Mass.  541 ;  Wilkinson  v.  Scott,  17  Mass.  257;  Bal- 
lard v.  Briggs,  7  Pick.  537 ;  Basford  v.  Pearson,  9  Allen,  393 ;  Goodspeed  v- 
Fuller,  46  Me.  141 ;  Bassett  v.  Bassctt,  65  Me.  127  ;  Rockwell  v.  Brown,  64  N. 
Y.  213 ;  Murdock  v.  Gilchrist,  52  N.  Y.  240  ;  Calloway  v.  Hearn,  1  Houst.  610 ; 
Mendenhall  v.  Parish,  8  Jones  L.  108 ;  Lowe  v.  Weatherley,  4  Dev.  &  B.  212 ; 
Kimball  v.  Walker,  30  111.  511 ;  Laker.  Gray,  35  Iowa,  462;  Kumlcrr.  Fergu- 
son, 7  Minn.  442 ;  Coles  v.  Soulsby,  21  Cal.  47 ;  Rhim  v.  Ellen,  30  Cal.  362. 

627 


§    802  THE    REQUISITES    OF    A    DEED.  [PART   III. 

is  only  conclusive  as  to  the  fact  that  there  was  a  considera- 
tion to  the  deed.1 

§  802.  Voluntary  and  fraudulent  conveyances. — Al- 
though a  consideration  may  not  be  necessary  to  make  a 
valid  conveyance,  as  between  the  parties  and  their  privies, 
the  question  presents  a  different  phase  in  respect  to  the 
creditors  of  the  grantor.  Questions  of  this  kind  arise  under 
the  statutes  13  Eliz.  ch.  5,  and  27  Eliz.  ch.  4,  which  have 
been  substantially  re-enacted  in  all  the  States  of  this  coun- 
try. The  statutes  are  .said  to  be  affirmatory  of  the  common 
law.  Whether  this  be  so  is  a  matter  of  very  little  impor- 
tance. Under  the  statutes,  if  a  conveyance  of  lands  is  made 
without  a  substantial  valuable  consideration,  while  the 
grantor  is  in  debt,  under  certain  circumstances  at  least,  ex- 
isting creditors  can  avoid  the  conveyance,  and  satisfy  their 
demands  by  proceeding  against  the  land.  If  the  conveyance 
is  to  any  one  except  a  child  or  wife,  or  in  other  words, 
where  there  is  not  even  a  good  consideration  passing  be- 
tween the  parties,  the  conveyance  is  in  any  case  void  as 
against  existing  creditors.2  But  in  a  voluntary  convej'ance 
to  a  wife  or  child,  if  at  the  time  of  the  conveyance  sufficient 
was  left  in  the  hands  of  the  grantor  to  amply  secure  existing 

1  Goodspeed  v.  Fuller,  46  Me.  141 ;  Bassett  v.  Bassett,  55  Me.  127 ;  Pierce 
v.  Brew,  43  Yt.  295 ;  Beach  v.  Packard,  10  Vt.  96 ;  Paige  v.  Sherman,  6  Gray, 
oil ;  Miller  v.  Goodwin,  8  Gray,  542  ;  Wilkinson  v.  Scott,  17  Mass.  257 ;  Mur- 
dock  v.  Gilchrist,  52  N.  Y.  246;  Grout  v.  Townsend,  2  Denio,  835;  Morris 
Canal  v.  Ryerson,  27  N.  J.  L.  467 ;  Callaway  v.  Hearn,  1  Houst.  610 ;  Menden- 
hall  v.  Parish,  8  Jones  L.  108;  Lowe  v.  Weatherley,  4  Dev.  &  B.  212 ;  Parker 
v.  Foy,  43  Miss.  260 ;  Rabsuhl  v.  Lack,  35  Mo.  316 ;  Kimball  v.  "Walker,  30  111. 
511;  Rockhill  v.  Spraggs,  9  Ind.  30;  Lawton  v.  Buckingham,  15  Iowa,  22; 
Harper  v.  Perry  28  Iowa,  63 ;  Kumler  v.  Ferguson,  7  Minn.  442 ;  Irvine  v. 
McKeon,  23  Cal.  475;  Rhim  v.  Ellen,  36  Cal.  362. 

2  Sexton  v.  Wbeaton,  8  Wheat.  229;  Hinde's  Lessee  v.  Longworth,  11 
Wheat.  199 ;  Lerow  v.  Wilmarth,  9  Allen,  386  ;  Reade  v.  Livingston,  3  Johns. 
Ch.  500;  Salmon  v.  Bennett,  1  Conn.  525;  Washband  v.  Washband,  27  Conn. 
424 ;  Doe  v.  Hurd,  7  Blackf.  510 ;  Mercer  v.  Mercer,  29  Iowa,  557  ;  Bullitt  v. 
Taylor,  34  Miss.  708. 

628 


CH.  XXII.]  THE   REQUISITES   OF   A   DEED.  §    802 

creditors,  the  conveyance  will  nevertheless  be  good.  But  if 
the  grantor  is  insolvent,  ti  >n  it  may  be  avoided  by  existing 
creditors.1  Subsequent  creditors  have  no  interest  in  such 
conveyances,  and  cannot  avoid  them  unless  they  have  been 
made  with  an  actual  fraudulent  intent,2  and  then  they  may 
be  avoided  by  subsequent  as  well  as  existing  creditors.3 
And  even  where  the  consideration  is  valuable,  if  it  is  done 
with  a  fraudulent  intent,  and  the  grantee  participates  in  the 
fraud,  the  deed  can  be  avoided  by  creditors.  But  if  the 
grantee  is  an  innocent  purchaser  for  value,  he  acquires  a 
good  title  free  from  the  claims  of  the  creditors.4  Voluntary 
conveyances  are  those  which  do  not  rest  upon  a  valuable 
consideration.  And  under  the  term  "  valuable  considera- 
tion "  the  law  includes  everything  possessing  a  pecuniary 
value,  and  likewise  a  promise  to  marry,  as  well  as  actual 
marriage.  Conveyances  possessing  any  one  of  these  con- 
siderations are  not  voluntary.5     Although  the  valuable  con- 

1  Lerow  v.  Wilmarth,  9  Allen,  386 ;  Pomeroy  v.  Bailey,  43  N.  H.  118 ;  Van 
"Wyck  v.  Seward,  6  Paige,  62;  Baker  v.  Bliss,  39  N.  Y.  70;  Posten  v.  Posten, 
4  Whart.  42 ;  Miller  v.  Pearce,  6  "Watts  &  S.  101 ;  Gridley  v.  Watson,  53  111. 
193;  Bridgford  v.  Riddel,  55  111.  261;  Pratt  v.  Myers,  56  111.  24;  Stewart  v. 
Rogers,  25  Iowa,  395 ;  Baldwin  v.  Tuttle,  23  Iowa,  74. 

2  Thacher  v.  Phinney,  7  Allen,  150;  Beal  v.  Warren,  2  Gray,  447  ;  Trafton 
v.  Hawes,  102  Mass.  541 ;  Lormore  v.  Campbell,  60  Barb.  62  ;  Stone  v.  Myers, 
9  Minn.  311. 

3  Marston  v.  Marston,  54  Me.  476  ;  Paruman  v.  Welch,  19  Pick.  231 ;  Coo- 
lidge  v.  Melvin,  42  K  H.  521 ;  Redfield  v.  Buck,  35  Conn.  329 ;  Paulk  v.  Cooke, 
39  Conn.  566 ;  Van  Wyck  v.  Seward,  6  Paige,  62  ;  Savage  v.  Murphy,  34  N.  Y. 
608;  Case  v.  Phelps,  39  N.  Y.  164;  Williams  v.  Davis,  69  Pa.  St.  21 ;  Pratt  v. 
Myers,  56  111.  24 ;  Bridgeford  v.  Riddel,  55  111.  2C1 ;  Bullitt  v.  Taylor,  34  Miss. 
740;  Herschfeldt  v.  George,  G  Mich.  466. 

*  Oriental  Bank  v.  Ilaskins,  3  Mete.  340;  Somes  v.  Brewer,  2  Pick.  184; 
Bridge  v.  Eg^lcston,  14  Mass.  250;  Wadsworth  v.  Williams,  100  Mass.  131; 
Clapp  v.  Tirrell,  20  Pick.  247  ;  Jackson  v.  Henry,  10  Johns.  185 ;  Verplanck  v. 
Sterry,  12  Johns.  552  ;  Carpenter  v.  Murin,  42  Barb.  300 ;  Wright  v.  Brandis, 
1  lnd.  336  ;  Ruffing  v.  Til  ton,  12  Ind.  260 ;  Hughes  v.  Monty^i  Iowa,  499 ; 
Chapel  v.  Clapp,  29  Iowa,  194;  Wright  v.  Howell,  35  Iowi;  292. 

5  Prodgers  v.  Langham,  1  Sid.  133;  Smith  v.  Allen,  5  Allen,  458;  Wash- 
band  v.  Washband,  27  Conn.  424 ;  Sterry  v.  Arden,  1  Johns.  Cb.  261 ;  Huston 
v.  Cantril,  11  Leigh,  176;  Rockhill  v.  Spraggs,  9  Ind.  32. 

<;29 


§    803  THE    REQUISITES    OF    A    DEED.  [PART    III. 

sideration  must  be  substantial,  it  need  not  be  adequate  in  order 
to  make  the  conveyance  good  against  creditors.1  It  is 
further  necessary,  in  order  that  a  conveyance  maybe  avoided 
by  creditors,  that  the  thing  conveyed  must  be  subject  to 
levy  and  sale  under  execution.  The  conveyance  of  a  home- 
stead without  consideration  cannot  be  avoided  by  creditors 
for  being  voluntary.2 

§  803.  Operative  words  of  conveyance. — To  make  a 
complete  and  valid  conveyance,  it  is  also  necessary  that  the 
deed  should  contain  what  are  termed  operative  words  of 
conveyance,  i.e.,  words  which  clearly  manifest  the  intent  of 
the  grantor  to  part  with  his  interest  or  estate  in  the  land. 
It  has  been  shown  more  at  length  in  a  previous  chapter  what 
are  the  technical  operative  words  usually  employed  in  the 
different  kinds  of  common-law  and  statutory  conveyances,3 
and  nothing  further  in  respect  to  them  need  be  added  here. 
The  deed,  in  general  use  in  all  the  States,  contains  ordina- 
rily the  words  "give,  grant,  bargain,  and  sell,"  and  this 
deed  may  be  construed  to  be  a  primary  or  secondary  con- 
veyance, a  common-law  conveyance,  or  one  under  the  Stat- 
ute of  Uses,  according  as  one  or  the  other  construction 
would  best  effectuate  the  intention  of  the  parties.4  Not 
only  is  this  the  rule,  but  it  is  not  even  necessary  to  use  the 
technical  operative  words  of  any  kind  of  conveyance,  al- 
though it  is  advisable  to  do  so  to  remove  all  doubt  as  to  the 
validity  of  the  conveyance.     Any  words,  although  not  rec- 

1  Washband  v.  Washband,  27  Conn.  424 ;  Sexton  v.  Wheaton,  8  Wheat. 
229 ;  Hinde's  Lessee  v.  Longworth,  11  Wheat.  199  ;  Salmon  v.  Bennett,  1  Conn. 
525 ;  Lerow  v.  Wilmarth,  9  Allen,  380 ;  Reade  v.  Livingston,  3  Johns.  Ch.  500 ; 
Bullitt  v.  Taylor,  34  Miss.  708 ;  Mercer  v.  Mercer,  29  Iowa,  557;  Doe  v.  Hurd. 
7  Blackf.  510. 

2  Gassett  v.  Grout,  4  Mete.  490;  Danforth  v.  Beattie,  43  Vt  138;  Wood  v. 
Chambers,  20  Texas,  254;  Dreutzer  v.  Bell,  11  Wis.  114;  3  Washb.  on  Real 
Prop.  334. 

3  See  ante,  ch.  XXL,  sect.  3. 
*  See  ante,  sect.  782. 

630 


€H.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    805 

ognized  as  formal  or  technical  words  of  conveyance,  will  be 
sufficient,  if  they  establish  clearly  the  intention  to  transfer 
the  estate.1  Thus,  where  the  grant  was  to  A.  and  his  heirs, 
provided  if  A.  died  in  his  minority  without  issue,  then  the 
property  was  to  go  to  the  issue  of  B.,  the  word  go  was  held 
sufficient,  in  connection  with  the  previous  grant,  to  pass  the 
estate  to  the  issue  of  B.2  And  the  word  alien  has  been  held 
sufficient  to  pass  an  estate  reversion,  where  the  conveyance 
would  not  operate  as  a  bargain  and  sale,  for  the  want  of 
enrollment.3  On  the  other  hand,  a  deed,  in  which  the  only 
words  of  conveyance  were  "  sign  over,"  was  held  to  be  in- 
valid.4 In  like  manner,  it  would  not  be  fatal  to  the  validity 
of  the  deed  if  the  operative  words  are  in  the  past,  instead 
of  the  present  tense,  for  example,  "  has  given  and  granted," 
instead  of  "do  give  and  grant,"  but  it  is  the  prevailing 
custom  in  most  parts  of  this  country  to  use  both  tenses, 
viz.  :  have  given  and  granted  and  do  hereby  give  and  grant, 
although  the  past  tense  is  mere  surplusage.5 

§  804.  Execution,  what  constitutes.  —  By  the  execution 
of  a  deed  is  here  meant  the  various  formalities  required  by 
law  for  the  completion  of  it,  which  include  signing,  sealing, 
attestation  and  acknowledgment.  A  deed  may  be  executed 
either  by  the  grantor  himself,  or  by  an  agent  duly  author- 
ized to  act  for  him. 

§  805.  Power  of  attorney.  —  It  requires,  however,  to 
enable  an  agent  to  execute  a  deed  for  his  principal,  a  power 
of  attorney  under  seal,  the  rule  of  agency  being  that  the 

1  Roe  v.  Tranmarr,  2  Wils.  75;  s.  c,  Smith's  Ld.  Cas. ;  Shove  v.  Pincke,  5 
T.  R.  124;  Marden  v.  Chase,  32  Me.  229;  Lynch  v.  Livingston,  8  Barb.  463; 
Ivory  v.  Burns,  66  Pa.  St.  300 ;  Folk  v.  Varn,  9  Rich.  Eq.  303 ;  Young  v. 
Ringo,  1  B.  Mon.  30 ;  McKinney  v.  Settles,  31  Mo.  541. 

4  Folk  v.  Vara,  9  Rich.  Eq.  303. 

8  Adams  v.  Steer,  Cro.  Jac.  210. 

*  McKinney  v.  Settles,  31  Mo.  541. 

6  3  Washb.  on  Real  Prop.  378 ;  Pierson  v.  Armstrong,  1  Iowa,  292. 

631 


§    805  THE    REQUISITES    OF   A   DEED.  [PART    III. 

power  must  be  of  the  same  grade  of  instrument  as  that 
which  the  agent  is  to  execute..1  This  statement  must  be 
qualified  by  the  remark  that,  if  it  is  executed  by  the  agent 
in  the  presence  of  the  principal,  it  is  constructively  the 
manual  act  of  the  principal,  and  needs  no  power  of  attorney 
under  seal.2  This  is  not  only  the  rule  in  regard  to  ordinary 
agencies,  but  applies  also  to  the  general  agency  of  partners 
in  a  partnership.  Without  an  express  authority  granted  by 
a  power  of  attorney  under  seal,  the  conveyance  by  one 
partner  of  partnership  lands,  although  in  the  name  of  the 
partnership,  will  pass  only  his  interest  or  share  in  the  prop- 
erty. And  a  subsequent  ratification,  to  be  effective,  must 
also  be  by  an  instrument  under  seal.3  In  respect  to  the 
manner  in  which  the  deed  must  be  executed,  when  done  by 
an  agent,  the  law  is  extremely  technical.  In  the  execution, 
the  act  must  appear  to  be  that  of  the  principal,  and  the 
deed  must  show  through  whom  the  principal  acts.  It  must 
be  the  principal's  deed ;  he  must  grant  and  convey  the  land. 
If  the  premises  of  the  deed  are  in  the  name  of  the  agent, 
although  he  signs  the  deed  as  agent,  and  the  deed  contains 
a  recital  of  his  authority,  it  will  not  be  the  deed  of  the 
principal,   and   hence   inoperative.4     The  proper  mode  of 

1  Livingston  v.  Peru  Iron  Co.,  9  Wend.  522 ;  Han  ford  v.  McNair,  9  "Wend. 
54 ;  Stetson  v.  Patten,  2  Me.  358 ;  Montgomery  v.  Dorion,  6  N.  H.  250 ;  Tap. 
pan  v.  Redfield,  5  N.  J.  Eq.  399 ;  Kime  v.  Brooks,  9  Ired.  219 ;  Doe  v.  Blacker, 
27  Ga.  418 ;  Smith  v.  Dickenson,  6  Humph.  261 ;  Plummer  v.  Kussel,  2  Bibb, 
17 ;  Khode  v.  Louthain,  8  Blackf.  413  ;  Moore  v.  Pendleton,  16  Ind.  481 ;  Videau 
v.  Griffin,  21  Cal.  389. 

2  Ball  v.  Duntersville,  4  T.  K.  313  ;  King  v.  Longnor,  4  B.  &  Ad.  647 ;  Frost 
v.  Deering,  21  Me.  156;  Burns  v.  Lynde,  6  Allen,  309;  Gardner  v.  Gardner,  5 
Cush.  483;  Woodu.  Goodridge,  6  Cush.  117;  McKay  v.  Bloodgood,  9  Johns. 
285;  Kime  v.  Brooks.  9  Ired.  219;  Videau  v.  Griffin,  21  Cal.  392. 

3  Pars,  on  Part.  369;  3  Washb.  on  Real  Prop.  262.  In  Iowa  a  parol  ratifi- 
cation is  held  to  be  sufficient  to  effectuate  the  conveyance  by  one  partner. 
Haynes  v.  Seacrest,  13  Iowa,  455. 

4  3  "Washb.  on  Real  Prop.  277 ;  Copeland  v.  Mercantile  Ins.  Co.,  6  Pick. 
198 ;  Squier  v.  Morris,  1  Lans.  282  ;  Townsend  v.  Smith,  4  Hill,  351 ;  Martin  v. 
Flowers,  8  Leigh,  158 ;  Briggs  v.  Partridge,  7  J.  &  Sp.  339. 

632 


CH.  XXII.]  THE   REQUISITES    OF   A   DEED.  §    805 

signing  is  A.  (principal)  by  B.  (agent)  ;  and  there  are  some 
authorities  which  hold  that  no  other  signature  will  be  a  good 
execution.  But  the  rule  has  of  late  been  somewhat  relaxed, 
so  that  where  the  deed  purports  in  terms  to  be  the  act  of 
the  principal,  and  the  signature  is  B.  (agent)  for  A.  (prin- 
cipal), or  B.  as  the  attorney  of  A.,  and  the  like,  it  will  be  a 
valid'execution.1  But  the  deed  must  be  in  the  name  of  the 
principal,  and  it  must  be  sealed  with  his  seal.2  If  signed 
by  the  agent  without  affixing  the  principal's  name,  it  will 
be  a  defective  execution  ;  and  so  also,  if  the  principal's 
name  is  signed  without  mentioning  that  it  was  done  by  at- 
torney.3 But  it  has  been  held  that  a  recital  in  the  deed,  that 
it  was  executed  by  the  grantor  by  attorney,  does  away  with 
the  necessity  of  the  signature  of  the  agent.4  To  be  good 
the  principal  must  also  be  alive."  A  common-law  power  of 
attorney  dies  with  the  principal,  and  the  deed  by  the  attor- 
ney after  the  death  of  the  principal  is  absolutely  void.5  But 
the  reader  must  here  bear  in  mind  the  important  distinction 
already  explained  between  powers  of  attorney,  a  common- 
law  authority,  and  powers  of  appointment,  operating  under 
the  Statute  of  Uses  and  the  Statute  of  Wills.  The  latter 
vest  upon  their  creation  an  irrevocable  equitable  interest  in 
the  donee,  which  survives  the  principal,  and  is  executed  in 
the    name   of   the   donee.     Authors   very  often    speak  of 

1  Wilkes  v.  Back,  2  East,  142 ;  Mussey  v.  Scott,  7  Cush.  216 ;  Jones  v.  Car- 
ter, 4  Hen.  &  M.  196;  Doe  v.  Blacker,  27  Ga.  418;  Butterfield  v.  Beal,  3  Ind. 
208 :  Wilburn  v.  Larkin,  3  Blackf.  55  ;  Hunter  v.  Miller,  6  B.  Mon.  612 ;  Mar- 
tin v.  Almond,  25  Mo.  313  ;  Wilkinson  v.  Getty,  13  Iowa,  157. 

*  Elwell  v.  Shaw,  16  Mass.  42;  Townshend  v.  Corning,  23  Wend.  439; 
Barger  v.  Miller,  4  Wash.  C.  Ct.  280;  Harper  v.  Hampton,  1  Harr.  &  J.  709; 
Echols  v.  Cheney,  28  Cal.  160;  Morrison  v.  Bowman,  29  Cal.  352. 

3  Elwell  v.  Shaw,  16  Mass.  42;  Wood  v.  Goodridge,  6  Cush.  117;  Thurman 
v.  Cameron,  24  Wend.  90. 

*  Devinney  v.  Reynolds,  1  Watts  &  S.  328. 

5  Harper  v.  Little,  2  Me.  14 ;  Stetson  v.  Patten,  2  Me.  358 ;  Bergen  v.  Ben- 
nett, 1  Caines'  Cas.  15;  Hunt  v.  Rousmaniere,  2  Mason,  249;  Wilson  v.  Troup, 
2  Cow.  236  ;  Mansfield  v.  Mansfield,  6  Conn.  662 ;  Ferris  v.  Irving,  28  Cal.  648. 

633 


§    806  THE    REQUISITES    OF    A    DEED.  [PART    III. 

jpowers  coupled  with  an  interest,  as  distinguishable  from 
common-law  powers  of  attorney,  in  respect  to  the  irrevoc- 
ability of  the  former.  Except  as  a  power  of  appointment 
under  the  Statute  of  Uses  and  the  Statute  of  Wills,  there 
is  no  such  power  in  the  common-law  of  real  property  as  one 
coupled  with  an  interest.1 

§  806.  Power  of  attorney  granted  by  married  woman. — 

It  is  the  settled  law  in  a  number  of  the  States  that  a  mar- 
ried woman  cannot  make  a  valid  power  of  attorney,  author- 
izing the  conveyance  of  her  lands,  even  though  the  power 
is  executed,  jointly  with  her  husband,  and  acknowledged  by 
her  in  the  manner  pointed  out  by  the  statute  for  the  ac- 
knowledgment of  her  deeds.2  And  a  deed  by  the  husband's 
attorney,  conveying  lands  of  the  wife,  which  is  executed 
and  acknowledged  by  the  wife,  has  also  been  held  invalid.3 
But  it  is  difficult  to  discover  any  reason  for  not  permitting 
hereto  do  by  an  agent  what  she  is  authorized  to  do  herself, 
provided  the  formalities  required  by  statute  for  the  execu- 
tion of  deeds  by  married  women  have  been  complied  with 
in  the  execution  of  the  power  of  attorney.  And  such  a 
power  has  been  expressly  recognized  by  statute  in  some  of 
the  States,  while  in  others  it  seems  to  be  taken  for  granted 
that  she  may  execute  a  valid  power  of  attorney.4  It  is,  how- 
ever, apparently  well  settled  that  a  power  of  attorney  exe- 

1  See  ante,  sect.  658. 

2  Allen  v.  Hooper,  50  Me.  373 ;  Holladay  v.  Daily,  19  Wall.  609;  Sumner 
v.  Conant,  10  Vt.  9 ;  Earle  v.  Earle,  1  Spen.  347 ;  Kearney  v.  Macomb,  16  N. 
J.  Eq.  189 ;  Lewis  v.  Coxe,  5  Harr.  401.    See  Dawson  v.  Shirley,  6  Blackf.  531. 

8  Toulmin  v.  Heidelberg,  32  Miss.  268. 

4  Koarty  v.  Mitchell,  7  Gray,  243 ;  Gridley  v.  Wynant,  23  How.  503 ;  Weis. 
brod  v.  Chicago  &  N.  W.  B,  It.,  18  Wis.  41 ;  Wilkinson  v.  Getty,  13  Iowa,  137  ; 
Koch  v.  Briggs,  14  Cal.  262;  Dow  v.  Gould,  31  Cal.  646.  In  Hardenburg  v. 
Larkin,  47  N.  Y.  113,  that  the  common  law  did  not  permit  a  married  woman 
to  execute  a  deed  by  attorney;  but  she  is  now  authorized  by  statute  to  do  so. 
In  Dawson  v.  Shirley,  6  Blackf.  531,  it  was  held  that  a  married  woman  could 
jiot  acknowledge  her  deed  by  attorney. 

634 


€H.  XXII.]  THE    REQUISITES    OF    A   DEED.  §    807 

cuted  by  a  feme  sole  will  be  revoked  by  ber  subsequent 
marriage.1 

§  807.  Signing.  — At  common  law  it  was  not  necessary 
for  tbe  parties  to  sign  the  deed,  although  under  the  Saxon 
laws  the  deeds  were  subscribed  with  the  sign  of  the  cross, 
and  were  not  required  to  be  sealed.  After  the  Norm:;n 
conquest  sealing  was  invariably  required,  but  signing  be- 
came unnecessary.2  It  seems  that  in  some  of  the  States  to 
a  very  late  day  a  deed  is  recognized  as  a  valid  conveyance 
without  being  signed  by  the  parties,  but  in  most  of  them, 
if  not  all,  signing  is  absolutely  required,  and  in  all  it  is  cus- 
tomary and  advisable.3  Sometimes  the  statute  requires  the 
deed  to  be  subscribed.  In  that  case  the  parties  must  write 
their  names  at  the  bottom  of  the  instrument.  But,  gener- 
ally, in  the  abssnce  of  such  a  statute,  the  signature  in  any 
.part  of  the  deed  would  suffice;  and,  although  it  is  usual  for 
the  grantor  to  write  the  signature  himself,  it  is  not  always 
necessary.  To  enable  an  ignorant  person  to  execute  a  deed 
one  may,  at  his  request,  and  in  his  presence,  sign  his  name, 
and,  by  affixing  a  mark  to  the  signature,  the  grantor  adopts 
the  signature  as  his  own,  and  the  deed  will  be  valid.4  It  is 
not  even  necessary  that  the  grantor  should  affix  his  mark  in 
-order  to  adopt  the  signature  as  his  own.  If  done  in  his 
presence,  the  signature  by  the  authorized  agent  is  theoret- 
ically the  act  of  the  principal,  and  the  deed  is  valid,  though 

1  3  Washb.  on  Real  Prop.  259 ;  2  Kent's  Com.  645 ;  Judson  v.  Sierra,  22 
Texas,  365. 

a  3  Washb.  on  Ileal  Prop.  270;  Co.  Lit.  171  b;  Van  Santwood  v.  Sandford, 
12  Johns.  198 ;  Hutchins  v.  Byrne,  9  Gray,  367 ;  Hammond  v.  Alexander,  1 
Bibb,  333 ;  Taylor  v.  Morton,  5  Dana,  365 ;  2  Bla.  Com.  309 ;  Williams  on 
Real  Prop.  152. 

s  Sicard  v.  Davis,  6  Pet.  124;  Clark  v.  Graham,  Wheat.  519;  Hutchins  v. 
Byrnes,  9  Gray,  367 ;  Isham  v.  Bennington,  19  Vt.  232 ;  Elliott  v.  Sleeper,  2 
N.  H.  529;  McDill  v.  McDill,  1  Dall.  64;  Plummer  v.  Russel,  2  Bibb,  174; 
■Chiles  v.  Conley,  2  Dana,  21. 

*  Baker  v.  Dening,  8  Ad.  &  El.  94;  Truman  v.  Lore,  14  Ohio  St.  154. 

r>35 


§    808  THE    REQUISITES    OF   A   DEED.  [PART   DTI* 

it  is  not  shown  that  the  grantor  has  been  disabled  by  any 
cause  from  signing  himself.1  And  in  one  case  it  was  held 
that  where  a  wife  signed  her  husband's  name  to  a  deed  in 
his  absence,  and  he  afterwards  acknowledged  it  as  his  act 
and  deed,  and  delivered  it  to  the  grantee,  the  subsequent 
acknowledgment  and  delivery  constituted  a  ratification,  or 
rather  an  adoption,  of  the  signature  as  his  own,  and  that  the 
desd  was  properly  executed.2  This  case  was  different  from 
the  case  where  the  entire  execution  of  the  deed  was  intrusted 
to  another.  Then,  as  has  been  explained  in  a  preceding 
paragraph,  a  power  of  attorney  under  seal  would  have  been 
required. 

§  808.  Sealing.  — At  common  law  sealing  was  an  impor- 
tant part  of  the  execution,  although,  as  has  been  stated, 
signing  was  dispensed  with.3  This  circumstance  arose,  no 
doubt,  from  the  fact  that  very  few  people  in  the  early  days 
of  the  common  law  could  write  and  sign  their  names,  and  it 
became  customary  to  identify  their  solemn  deeds  by  attach- 
ing their  seals,  which  were  peculiar  and  easily  recognized. 
Although  it  has  now  become  a  mere  formality,  it  is  still 
held  to  be  indispensable  in  most  of  the  States,  possibly  in 
all  except  Kentucky,  Iowa,  Alabama,  Kansas,  Louisiana  and 
Texas,  where  by  statute  seals  have  been  abolished  as  a  requi- 
site of  a  deed.4  The  word  deed  means  an  instrument  under 
seal,  and,  except  in  those  States  where  seals  are  by  statute 
dispensed  with,  no  instrument  can  be  called  a  deed  without 

1  Ball  v.  Duntersvile,  4  T.  R.  313 ;  Frost  v.  Deering,  21  Me.  156;  Gardner 
v.  Gardner,  5  Cush.  483  ;  Wood  v.  Goodridge,  6  Cush.  117 ;  Burns  v.  Lynde,  6 
Allen,  309 ;  McKay  v.  Bloodgood,  9  Johns.  285 ;  Kime  v.  Brooks,  9  Ired.  219 ; 
Videau  v.  Griffin,  21  Cal.  392. 

2  Bartlett  v.  Drake,  100  Mass.  175. 

3  2  Bla.  Com.  309 ;  3  "VVashb.  on  Ileal  Prop.  270.  271. 

4  3  Washb.  on  Real  Prop.  271.  See  Shelton  v.  Armor,  13  Ala.  647 ;  Simp- 
son v.  Mundee,  3  Kan.  172;  Pierson  v.  Armstrong,  1  Clarke  (Iowa),  293. 

636 


CH.  XXII.]  THE   KEQUISITES   OF   A   DEED.  §    808 

being  sealed,  whatever  may  be  the  intention  of  the  parties.1 
But  there  need  be  no  reference  in  the  attestation  clause  of 
the  deed  to  the  sealing,  if  the  seal  is  actually  affixed,  al- 
though it  is  usual  to  state  that  the  party  has  set  his  hand  and 
seal  thereto.2  It  is  not  necessary  for  the  party  to  affix  the 
seal  himself.  It  may  be  done  by  any  one  else,  provided  he 
is  authorized  to  do  so,  or  the  unauthorized  act  is  subse- 
quently ratified  and  adopted  by  the  acknowledgment  and 
delivery  of  the  deed.3  And  one  seal  may  be  adopted  as  the 
seal  of  all  the  parties  to  the  deed.4  In  respect  to  what  will 
constitute  a  sufficient  sealing  the  law  is  not  uniform.  At 
common  law  impression  upon  wax  or  some  tenacious  sub- 
stance was  required.  Lord  Coke  says :  "  It  is  required  that 
the  deed,  charter,  or  writing,  must  be  sealed,  that  is,  have 
some  impression  upon  wax ;  for  sigillum  est  cera  imjyressa , 
quia  cera  sine  impressione  non  est  sigillum.5  In  the  New 
England  States  and  New  Jersey,  unless  changed  by  recent 
legislation,  the  common-law  seal  is  required,  although  prob- 
ably in  no  place  would  it  be  necessary  to  use  wax  or  sub- 
stance of  that  character,  an  impression  of  a  seal  upon  paper 
being  sufficient.  At  least  such  is  the  opinion  of  the  United 
States  Supreme  Court.6     But  in  the  majority  of  the  States 

1  Warren  v.  Lynch,  5  Johns.  239;  Jackson  v.  Wood,  12  Johns.  13;  Jack- 
son v.  Wendell,  12  Johns.  355 ;  Wadsworth  v.  Wendell,  5  Johns.  Ch.  224 ;  Un- 
derwood vl  Campbell,  14  N.  H.  393 ;  Taylor  v.  Glaser,  2  Serg.  &  R.  502 ;  Cline 
v.  Black,  4  McCord,  431;  Davis  v.  Brandon,  1  How.  (Miss.)  154;  Alexander 
v.  Polk,  39  Miss.  737  ;  Deming  v.  Bullitt,  1  Blackf.  241 ;  McCabe  v.  Hunter,  7 
Mo.  355;  Davis  v.  Judd,  6  Wis.  85. 

2  State  v.  Peck,  53  Me.  299 ;  Bradford  v.  Randall,  5  Pick.  496 ;  Mill  Dam 
Foundry  v.  Hovey,  21  Pick.  417;  Taylor  v.  Glaser,  2  Serg.  &  R.  502. 

3  Koehlerw.  Black  River,  etc.,  Co.,  2  Black,  715;  Elwell  v.  Shaw,  16  Mass. 
42 ;  Co.  Lit.  6  a ;  3  Washb.  on  Real  Prop.  272. 

*  Bradford  v.  Randall,  5  Pick.  496 ;  Tasker  v.  Bartlett,  5  Cush.  309 ;  War- 
ren v.  Lynch,  5  Johns.  239;  McKay  v.  Bloodgood,  9  Johns.  285;  Atlantic 
Dock  Co.  v.  Leavett,  54  N.  Y.  35 ;  Lambden  v.  Sharp,  9  Humph.  224. 

5  3  Inst.  169.  See  Warren  v.  Lynch,  5  Johns.  239;  Bradford  v.  Randall,  5 
Pick.  496 ;  Tasker  v.  Bartlett,  5  Cush.  359. 

6  Pillow  v.  Roberts,  13  How.  473.  See  Bates  v.  B.  &  N.  T.  Cent.  R.  R,  10 
Allen,  254. 

637 


§    809  THE    REQUISITES    OF   A   DEED.  [PART    III. 

a  simple  scroll,  with  "  L.  S.,"  or  the  word  "  seal "  written 
in  it,  is  a  sufficient  sealing.1  But  it  has  been  held  that  to 
make  a  scroll  a  good  sealing,  there  must  be  a  recital  in  the 
deed  that  the  party  has  affixed  his  seal.2 

§  809.  Attestation.  —  A  further  requisite  is  that  the  exe- 
cution be  done  in  the  presence  of  one  or  more  witnesses. 
At  common  law  this  was  not  necessary,3  and  is  still  unnec- 
essary in  some  of  the  States.4  But  generally,  in  the  United 
States,  witnesses  are  required,  the  number  varying  with  the 
statutory  regulation  of  each  State.  In  some  only  one  wit- 
ness is  required,  but  the  usual  number  is  two.5  And  if  the 
number  of  witnesses  required  by  law  is  not  obtained,  the 
deed  is  generally  held  to  be  invalid  as  a  legal  conveyance, 
although  in  New  Hampshire  and  Kentucky  the  deed  without 
proper  attestation  is  good  between  the  Dairies,6  and  in  Ver- 

1  The  scroll  is  a  good  seal  in  Arkansas,  Connecticut,  Delaware,  Florida,. 
Michigan,  Wisconsin,  Minnesota,  Oregon,  Missouri,  Ohio,  Texas,  Illinois, 
Mississippi,  Georgia,  Indiana,  Maryland,  North  Carolina,  Pennsylvania,  and 
South  Carolina.  3  Washb.  on  Real  Prop.  274,  275.  See  Warren  v.  Lynch,  6 
Johns.  239;  Williams  v.  Starr,  5  Wis.  549;  McRaven  v.  McGuire,  9  Smed.  & 
M.  34.  In  Turner  v.  Field,  44  Mo.  382,  the  Supreme  Court  of  Missouri  held 
that  a  piece  of  colored  paper,  attached  to  the  deed  by  mucilage,  would  be 
sufficient. 

*  Cromwell  v.  Tate,  7  Leigh,  301.  But  see  Ashwell  v.  Ayres,  4  Gratt.  283; 
Comerford  v.  Cobb,  2  Fla.  498;  McGuire  v.  McRaven,  9  Smed.  &  M.  34. 

3  2  Bla.  Com.  307  ;  Dale  v.  Thurlow,  12  Mete.  157 ;  Thacher  v.  Phinney,  7 
Allen,  149;  Craig  v.  Pinson,  Cheves,  273;  Meuley  v.  Zeigler,  23  Texas,  88. 

*  Dale  o.  Thurlow,  12  Mete.  157;  Long  v.  Ramsey,  1  Serg.  &  R.  73;  Wis- 
wall  v.  Ross,  4  Port.  321 ;  Ingram  v.  Hall,  1  Hayw.  205. 

5  Clark  v.  Graham,  6  Wheat.  577;  Merwin  v.  Camp,  3  Conn.  35;  Coit  v- 
Starkweather,  8  Conn.  289;  Winsted  Sav.  Bk.  v.  Spencer,  26  Conn.  195;  Stone- 
v.  Ashley,  13  N.  H.  38;  Hastings  v.  Cutler,  24  N.  H.  481;  Kingsley  v.  Hol- 
brook,  45  N.  H.  320;  Craig  v.  Pinson,  Cheves,  272 ;  Patterson  v.  Pease,  5  Ohio, 
119;  Richardson  v.  Bates,  S  Ohio  St.  261 ;  Fitzhugh  v.  Croghan,  2  J.  J.  Marsh. 
4  '29;  Wilkins  v.  Wells,  8  Smed.  &  M.  325;  Shirley  v.  Fearne,  33  Miss.  653; 
Chandler  v.  Kent,  8  Minn.  525 ;  Ross  v.  Worthington,  11  Minn.  443. 

6  Stone  v.  Ashley,  13  N.  H.  38 ;  Hastings  v.  Cutler,  24  N.  H.  481 ;  Kingsley 
r.  Holbrook,  45  N.  H.  320;  Fitzhugh  ».  Croghan,  2  J.  J.  Marsh.  429.  See 
■contra,  Crane  v.  Reeder,  21  Mich.  24. 

638 


CH.  XXII.]  THE    REQUISITES    OF   A    DEED.  §    810" 

mont  and  Minnesota,  where  two  witnesses  are  required,. 
subscription  by  one  witness  will  enable  the  deed  to  be  used 
in  equity  to  support  an  action  for  specific  performance.1 
The  witnesses  are  required  in  making  a  proper  attestation 
to  sign  their  names  to  the  instrument,  and  to  witness  the 
execution  of  it  by  the  grantor.  But  it  is  not  necessary  that 
it  should  be  executed  by  the.  parties  in  his  presence.  It  is 
sufficient  if  the  witnesses  are  requested  by  the  parties  to 
subscribe  to  the  attestation  clause,  and  the  signatures  on  the- 
deed  are  acknowledged  by  the  parties  to  be  theirs.2  Wit- 
nesses to  deeds  are  intended  merely  to  attest  the  execution 
of  the  deed,  and  cannot,  like  witnesses  to  wills,  express 
opinions  upon  the  mental  capacity  of  the  parties  to  the 
deed.3  Mr.  Washburn  cites  Mr.  Barrington  to  the  effect 
that  anciently  the  witnesses  were  a  necessary  part  of  the 
jury  which  was  to  try  the  validity  of  the  instrument,  and  a 
statute  then  dispensed  with  the  necessity  of  their  presence,, 
when  after  being  duly  summoned  they  fail  to  appear.4 

§  810.  Acknowledgment  or  probate.  —  As  a  general 
rule,  it  is  not  required,  to  make  the  deed  valid,  that  a  cer- 
tificate of  acknowledgment  or  probate  be  attached  to  it.5 
But  in  Ohio  the  certificate  is  necessary  to  pass  the  title,  and 
in  New  York  and  Texas  an  unacknowledged  deed  is  not  good 
against  subsequent  purchasers  and  incumbrances.6  And 
perhaps  in  all  the  States  the  acknowledgment  by  a  married 
woman  is  absolutely  required,  and  must  conform  strictly  to 

1  Day  v.  Adams,  42  Vt.  520;  Ross  v.  Worthington,  11  Minn.  438. 

*  Parke  v.  Mears,  2  B.  &  P.  217;  Jackson  v.  Phillips,  9  Cow.  113. 
8  Dean  v.  Fuller,  40  Pn.  St.  474. 

*  3  Washb.  on  Real  Prop.  277,  citing  Barring.  St.  (4th  ed.)  175. 

6  Gibbs  v.  Swift,  12  Cush.  393 ;  Blain  v.  Stewart,  2  Iowa,  383 ;  Lake  v.  Gray, 
30  Iowa,  415 ;  a.  c,  35  Iowa,  459 ;  Doe  v.  Naylor,  2  Blackf.  32 ;  Stevens  v. 
Hampton,  46  Mo.  408;  Ricks  v.  Reed,  19  Cal.  571. 

6  Smith  v.  Hunt,  13  Ohio,  260;  Genter  v.  Morrison,  31  Barb.  155;  Raggen 
v.  Avery,  63  Barb.  65 ;  "Wood  v.  Chapin,  13  1ST.  Y.  509 ;  Morse  v.  Salisbury,  48 
N.  Y.  636;  Meuley  v.  Zeigler,  23  Texas,  93. 

639 


§    810  THE   REQUISITES    OF    A    DEED.  [PART   III. 

the  requirements  of  the  statute,  in  order  to  bind  her.1  But 
in  all  the  States,  except  Kansas  and  Illinois,  in  order  that  a 
deed  may  be  recorded,  and  the  record  furnish  constructive 
notice  to  subsequent  purchasers,  it  must  be  acknowledged 
and  proved  before  some  officer  authorized  to  take  such  ac- 
knowledgments, and  the  certificate  of  acknowledgment  must 
be  indorsed  in  the  deed.2  In  some  of  the  States  the  ac- 
knowledgment is  required  to  be  made  by  the  grantor,  while 
in  others  the  deed  is  probated  by  the  oath  of  one  of  the 
witnesses.  But  the  taking  of  the  acknowledgment  is  a  min- 
isterial  and  not  a  judicial  act.  It  is,  therefore,  no  objection 
to  the  acknowledgment  that  it  was  taken  by  an  officer  related 
to  the  parties,  although  if  he  is  interested  in  the  conveyance 
the  certificate  will  be  valueless.3  And  where  the  officer  is 
only  authorized  to  perform  his  special  duties  within  certain 
limits  of  territory,  an  acknowledgment  taken  by  him  without 
these  limits  would  of  course  be  void.4  A  proper  certificate 
should  show  that  all  the  requirements  of  the  statute  were 
substantially  complied  with.5     In  some  of  the  States  the 

1  See  Bruce  v.  Perry,  11  Rich.  121 ;  McBryde  ».  Wilkinson,  29  Ala.  662; 
Perdue  v.  Aldridge,  19  Ind.  290. 

1  3  Washb.  on  Real  Prop.  314 ;  Simpson  v.  Mundee,  3  Kan.  181 ;  Carpen- 
ter v.  Dexter,  8  "Wall.  582 ;  Reed  v   Hemp,  16  111.  445. 

3  Beaman  v.  Whitney,  20  Me.  413;  Withers  v.  Baird,  7  Watts,  227;  Stevens 
v.  Hampton,  46  Mo.  408 ;  Wilson  v.  Traer,  20  Iowa,  233  ;  Kimball  v.  Johnson, 
14  Wis.  683;  Groesbeck  v.  Seeley,  13  Mich.  345.  In  one  of  the  Western 
States  a  deed  was  presented  for  registration,  in  which  the  acknowledgment  of  a 
married  woman,  as  grantor,  was  taken  by  her  husband  as  notary  public,  and 
he  certified  that  she  was  examined  separate  and  apart  from  her  husband.  It 
is  needless  to  remark  that  the  deed  was  not  a  valid  conveyance. 

*  Lynch  v.  Livingston,  8  Barb.  463 ;  s.  c,  6  N.  Y.  422 ;  Jackson  v.  Humphrey, 
1  Johns.  598 ;  Jackson  v.  Colden,  4  Cow.  2S0;  Thurman  v.  Cameron,  24  Wend. 
Dl;  Howard  Mut.  L.  Ass.  v.  Mclntyre,  3  Allen,  572  ;  Harris  v.  Burton,  4  Harr. 
<;6.  Contra,  Odiorne  v.  Mason,  9  N.  H.  30.  But  in  Massachusetts  a  magistrate 
for  one  county  may  take  acknowledgments  in  another  count}-.  Learned  v. 
Riley,  14  Allen,  109. 

5 'Chandler  v.  Spear,  22  Vt.  388;  Wood  v.  Cochrane,  39  Vt.  544;  Tully  r. 
Davis,  30  111.  108 ;  Jacoway  v.  Gault,  20  Ark.  190 ;  Bryan  v.  Ramirez,  8  Cal. 
461. 

640 


CH.  XXII.]  THE    REQUISITES    OF   A   DEED.  §    811 

certificate  is  not  conclusive  evidence  of  the  facts  stated 
therein,  but  it  contains  prima  facia  evidence  of  its  own 
genuineness,  as  well  as  of  the  facts  therein  stated.1  And, 
no  doubt,  in  all  of  the  States,  as  between  the  parties,  the 
certificate  may  be  impeached  for  fraud.2  But  in  the  other 
States  the  certificate  is  conclusive  against  subsequent  pur- 
chasers as  to  the  facts  stated  therein.3 

§811.  Reading  of  the  deed,  when  necessary .  —  Although 
the  reading  of  the  deed  to  the  grantor  and  grantee  can 
hardly  be  called  a  requisite  of  the  deed,  yet  if  the  party  is 
unable  to  read,  and  requests  the  deed  to  be  read  to  him,  a 
failure  to  comply  with  his  request,  or  a  false  reading  or 
statement  of  its  contents,  would  vitiate  the  deed.4  But  he 
must  make  the  request.  If  he  does  not  he  comes  under  the 
general  rule  that  a  grantor  is  presumed  to  know  the  con- 
tents of  the  deed,  and  cannot  avoid  it  on  the  plea  of  igno- 
rance   of   its    contents,    unless    the   circumstances    of   the 

1  Jackson  v.  Schoonmaker,  4  Johns.  161 ;  Jackson  v.  Hoyner,  12  Johns.  472 ; 
Hall  v.  Patterson,  51  Pa.  St.  289;  Borland  v.  Walrath,  33  Iowa,  130;  Dodge  v. 
Hollinshead,  6  Minn.  25;  Annan  v.  Folsom,  6  Minn.  500;  Edgerton  v.  Jones, 
10  Minn.  429;  Ladders  v.  Bolton,  26  Cal.  406. 

2  Eyster  v.  Hathaway,  50  111.  522 ;  Williams  v.  Baker,  71  Pa.  St.  482 ; 
Graham  v.  Anderson,  42  111.  514;  Bissett  v.  Bissett,  1  Har.  &  McH.  211; 
Hartley  v.  Frosh,  6  Texas,  208. 

3  Bissett  v.  Bissett,  1  Har.  &  McH.  211;  Hartley  v.  Frosh,  6  Texas,  208; 
McNeely  v.  Kucker,  6  Blackf.  391 ;  Graham  v.  Anderson,  42  111.  514;  Hester 
v.  Glasgow,  79  Pa.  St.  79;  21  Am.  Rep.  401 ;  Singer  Mfg.  Co.  v.  Rook,  84  Pa. 
St.  442;  24  Am.  Rep.  204.  And  this  is  true,  also,  in  respect  to  the  certificate 
of  acknowledgment  by  a  married  woman.  White  v.  Graves,  107  Mass.  325; 
•9  Am.  Rep.  38 ;  Kerr  v.  Russell,  69  111.  666 ;  18  Am.  Rep.  634 ;  Singer  Mfg.  Co. 
v.  Rook,  84  Pa.  St.  442 ;  24  Am.  Rep.  204 ;  Johnstone  v.  Wallace,  53  Miss. 
•j31  ;  24  Am.  Rep.  699.     And  where  the  certificate  in  a  married  woman's  deed 

s  defective,  it  cannot  be  subsequently  amended,  unless  the  defect  or  mistake 
relates  to  an  unimportant  fact.  Angier  v.  Schieffelin,  72  Pa.  St.  106;  13  Am. 
Rep.  659;  Merritt  v.  Yates,  71  111.  636 ;  22  Am.  Rep.  128. 

*  Manser's  Case,  2  Rep.  3;  Henry  Pigot's  Case,  11  Rep.  27  b;  Souverbye  v 
Arden,  1  Johns.  Ch.  252;  Hallenback  v.  Dewitt,  2  Johns.  404;  Jackson  v. 
Croy,  12  Johns.  429;  Jackson  v.  Havner,  12  Johns.  460;  Withington  v.  War- 
ren, 10  Mete.  434 ;  Taylor  v.  King,  6  Munf.  358. 

41  641 


§     812  THE    REQUISITES    OF    A    DEED.  [PART    III 

transaction  are  sufficient  to  sustain  the  charge  of  fraud , 
accident  or  mistake.1 

§  812.  Delivery  and  acceptance.  —  After  the  deed  has 
been  signed,  sealed  and  acknowledged,  the  next  requisite  is 
its  delivery  by  the  grantor  and  its  acceptance  by  the  grantee. 
These  acts  are  as  essential  to  the  validity  of  a  deed  as  sign- 
ing or  sealing.2  As  long  as  it  remains  in  the  possession  of 
the  grantor,  and  even  where  the  deed  has  been  stolen,  and 
the  property  passes  into  the  hands  of  an  innocent  purchaser,. 
or  falls  into  the  possession  of  the  grantor  in  any  other  way 
than  by  the  consent  of  the  grantee  and  with  the  intention 
to  pass  the  title,  the  title  is  still  in  the  grantor,  and  no  one 
can  acquire  title  from  the  grantee.3  But  if  it  is  once  deliv- 
ered, no  subsequent  act  of  the  grantor  can  impair  the  valid- 
ity of  the  conveyance.  The  title  is  in  the  grantee,  and  it 
cannot  be  recovered  from  him  except  in  one  of  the  legal  and 
formal  ways  recognized  by  the  law  for  acquiring  property.* 
And  though  the  delivery  was  made  by  the  grantor  through 
the  fraudulent  misrepresentations  of  the  grantee,  or  through 
some  mistake  of  fact  or  law,  if  the  delivery  was  an  inten- 
tional act,  it  passes  the  title,  and  can  only  be  divested  by  an 
equitable  proceeding.     If  it  is  in  the  meantime  conveyed  to 

1  Hartshorn  v.  Day,  19  How.  223 ;  Kimball  v.  Eaton,  8  N.  H.  391 ;  Truman 
v.  Lore,  14  Ohio  St.  155. 

2  Goddard's  Case,  2  Rep.  4  b  ;  Younge  v.  Gilbeau,  3  Wall.  641 ;  Fairbanks 
v.  Metcalf,  8  Mass.  230;  Jackson  v.  Dunlap,  1  Johns.  Cas.  114;  Church  v.  Gil- 
man,  15  Wend.  656;  Fisher  v.  Hall,  41  N.  Y.  421 ;  Cook  v.  Brown,  34  N.  Y. 
476;  Johnson  v.  Farley,  45  N.  H.  510;  Stiles  v.  Brown,  16  Vt.  563;  Fletcher 
v.  Mansur,  5  Ind.  267  ;  Hulick  v.  Scovil,  9  111.  175 ;  Overman  v.  Kerr,  17  Iowa, 
486;  Fisher  v.  Beckwith,  30  Wis.  55;  11  Am.  Rep.  546. 

3  Thoroughgood's  Case,  9  Rep.  136;  Chamberlain  v.  Staunton,  1  Leon.  140; 
Cutts  v.  York  Co.,  18  Me.  190;  Mills  v.  Gore,  20  Pick.  28;  Methodist  Church 
v.  Jaques,  1  Johns.  Ch.  456 ;  Roberts  v.  Jackson,  1  Wend.  478 ;  Black  v.  Lamb, 
12  N.  J.  Eq.  108 ;  Hadlock  v.  Hadlock,  22  111.  388 ;  Fisher  v.  Beckwith,  30  Wis. 
55 ;  11  Am.  Rep.  546.  - 

*  Shelton's  Case,  Cro.  Eliz.  7;  Souverbye  v.  Arden,   1  Johns.  Ch.  255; 
Younge  v.  Moore,  1   Strobh.  48 ;  Connelly  v.  Doe,  8  Blackf.  320 ;  Somers  t>. 
Pumphrey,  24  Ind.  240. 
642 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    812 

an  innocent  purchaser,  he  acquires  an  indefeasible  title.1 
The  title  also  passes,  notwithstanding  both  parties  believed 
that  the  title  will  not  pass  by  delivery  of  the  deed.2  To 
make  a  good  delivery,  the  deed  must  be  executed  completely.3 
A  delivery  before  its  completion  is  of  no  effect.  But,  ex- 
cept in  the  case  of  a  married  woman's  deed,  a  delivery  before 
the  acknowledgment  of  probate  will  be  good,  particularly  in, 
those  States  where  the  acknowledgment  is  not  a  requisite  to 
the  validity  of  the  deed  ;  although  it  seems  that  a  delivery 
will  not  be  presumed  to  have  been  made  before  the  date  of 
acknowledgment.4  Usually  the  deed  contains  the  date  of 
its  execution  and  delivery,  and  although  a  date  is  not  nec- 
essary to  the  validity  of  the  deed,5  if  it  contains  a  date  the 
deed  will  be  presumed  to  have  been  executed  and  delivered 
on  that  date.  But  the  deed  only  takes  effect  from  the  actual 
time  of  delivery,  and  the  actual  date  of  delivery  will  always 
control  the  date  mentioned  in  the  deed.6  The  deed  must 
also  be  delivered  during  the  lifetime  of  the  grantor.  A 
delivery  after  his  death  will  have  no  effect.7  But  there  may 
be  an  acceptance  by  the  grantee  after  the  grantor's  death.8 

1  Berry  v.  Anderson,  22  Ind.  41. 

2  Henchliffe  v.  Hinman,  18  Wis.  138. 

3  Burns  v.  Lynde,  6  Allen,  305 ;  McKee  v.  Hicks,  2  Dev.  379. 

*  People  v.  Snyder,  41  N.  Y.  402  ;  Darst  v.  Bates,  51  111.  439 ;  Blanchard  v. 
Tyler,  12  Mich.  339. 

6  Goddard's  Case,  2  Kep.  4  b;  Jackson  v.  Schoonmaker,  2  Johns.  234; 
Genter  v.  Morrison,  31  Barb.  155 ;  Lee  v.  Mass.  Ins.  Co.,  6  Mass.  208  ;  Geiss  v. 
Odenheimer,  4  Yeates,  278;  McKinney  v.  Rhoades,  5  Watts,  343;  Colquhoun 
v.Atkinson,  6  Munf.  550;  Swan  v.  Hodges,  3  Head,  254;  Thompson  v.  Thomp- 
son, 8  Ind.  333;  Banning  v.  Edes,  6  Minn.  402. 

6  Xenos  v.  Wickham,  14  C.  B.  (  n.  s.)  4G9;  Mitchell  v.  Bartlett,  51  N.  Y. 
453;  Jackson  v.  Bard,  4  Johns.  230;  Elsey  v.  Metcalf,  1  Denio,  323;  Cutts  v. 
York  Co.,  18  Me.  190;  Harrison  v.  Phillips*  Academy,  12  Mass.  455;  Smith 
v.  Porter,  10  Gray,  67 ;  Geiss  v.  Odenheimer,  4  Yeates,  278 ;  Colquhoun  v.  At- 
kinson, 6  Munf.  550;  Savery  v.  Browning,  18  Iowa,  249:  Lyon  v.  Mcllvain, 
24  Iowa.  15. 

7  Shoenberger  v.  Zook,  34  Pa.  St.  24;  Jackson  v.  Leek,  12  Wend.  107; 
Jackson  v.  Phipps,  12  Johns.  421 ;  Fisher  v.  Hall,  41  N.  Y.  423 ;  Fay  v.  Rich- 
ardson,  7  Pick.  91 ;  Woodbury  v.  Fisher,  20  Ind.  388. 

8  See  post,  sect.  814. 

643 


§    813  THE    REQUISITES    OF    A    DEED.  [PART    III. 

Acceptance  by  the  grantee  is  equally  essential  with  delivery 
by  the  grantor.  And  where  no  proof  of  acceptance  is  of- 
fered, and  the  facts  do  not  justify  the  legal  presumption 
of  acceptance,  no  title  passes.1  Until  acceptance  by  the 
grantee,  the  title  is  subject  to  the  claims  of  creditors  who 
have  levied  upon  the  property  after  a  tender  of  delivery.2 
So,  also,  if  the  grantor  tenders  the  deed  and  the  grantee 
declines  to  accept,  the  title  remains  unaffected  in  the  grantor.3 
If  there  are  several  grantees  in  a  deed,  the  deed  may  be  de- 
livered to  them  individually  on  separate  days.  But  the 
grantor  may  by  express  declaration  make  the  delivery  to 
one  answer  as  a  delivery  to  all.4  And  where  the  deed  con- 
veys conditional  limitations  and  remainders,  the  delivery  to 
the  tenant  of  the  particular  estate  always  constitutes  a  de- 
livery to  the  tenants  of  the  future  or  expectant  estate.5 

§  813.  What  constitutes  a  sufficient  delivery. — If  the 

deed  is  found  in  the  possession  of  the  grantee,  a  delivery 
and  acceptance  are  presumed.6     But,  like  other  legal  pre- 

1  Rogers  v.  Cary,  47  Mo.  232 ;  Younge  v.  Guilbeau,  3  Wall.  636 ;  Jackson 
v.  Phipps,  12  Johns.  421 ;  Wilsey  v.  Dennis,  44  Barb.  359 ;  Fonda  v.  Sage,  46 
Barb.  123;  Hatch  v.  Bates,  54  Me.  140;  Muynard  v.  Maynard,  10  Mass.  456; 
Baker  v.  Haskell,  47  N.  H.  479 ;  Jones  v.  Bush,  4  Harr.  1 ;  Pennel  v.  Weyant, 
2  Harr.  501  ;  Mitchell  v.  Ryan,  3  Ohio  St.  377-  Kingsbury  v.  Burnside,  58  111. 
310. 

2  Parmelee  v.  Simpson,  5  "Wall.  86 ;  Deny  Bank  v.  Webster,  44  N.  H.  268  ; 
Johnson  v.  Farley,  45  N.  H.  509;  Elmore  v.  Marks,  39  Vt  538;  Woodbury  r. 
Fisher,  20  Ind.  389;  Jackson  v.  Cleveland,  15  Mich.  101;  Day  v.  Griffith,  15 
Iowa,  103. 

3  Tompkins  o.  Wheeler,  16  Pet.  119  ;  Derry  Bank  v.  Webster,  44  N.  H.  268 ; 
Johnson  v.  Farley,  45  N.  H.  509;  Cole  v.  Gill,  14  Iowa,  529;  Read  v.  Robin- 
son, 6  Watts  &  S.  329;  Peavey  ».  Tilton,  18  N.  H.  152;  Xenos  v.  Wickham, 
14  C.  B.  ( x.  s.)  474 ;  Welsh  v.  Sackett,  12  Wis.  243. 

4  Hannah  v.  Swarner,  8  Watts,  9;  Tewksbury  v.  O'Connell,  20  Cal.  69. 

5  Phelps  v.  Phelps,  17  Md.  134;  Folk  v.  Yarn,  9  Rich.  Eq.  303. 

6  Ward  v.  Lewis,  4  Pick.  518;  Chandler  v.  Temple,  4  Cush.  285;  Cutts  v. 
York  Co.,  18  Me.  190 ;  Canning  v.  Pinkham,  1  N.  H.  353 ;  Clark  v.  Ray,  1  Harr. 
&  J.  319;  Southern  Life  Ins.  Co.  v.  Colo,  4  Fla.  359;  Houston  v.  Stanton,  11 
Ala.  412;  Ward  v.  Ross,  1  Stew.  (  Ala.)  136;  Green  v.  Yarnall,  6  Mo.  326. 

644 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    813 

sumptions,  it  is  liable  to  be  rebutted  by  proof  that  the  pos- 
session of  it  was  obtained  without  the  intention  of  the  grantor 

© 

to  make  a  delivery,  or  without  his  consent,  and  parol  evi- 
dence is  admissible  to  establish  this  fact.1     In  determining; 

© 

what  will  constitute  a  sufficient  delivery,  it  is  found  that  the 
intention  is  the  controlling  element.  No  particular  formal- 
ity need  be  observed,  and  the  intention  to  deliver  the  deed 
may  be  manifested  by  acts,  or  by  words,  or  by  both.  But 
one  or  the  other  must  be  present  to  make  a  good  delivery. 
The  grantor  may  direct  the  grantee  to  take  the  deed  lying 
upon  the  table,  and  if  the  latter  does  so,  the  delivery  is 
complete.  So  also  if  the  deed  is  thrown  down  upon  the 
table  by  the  grantor,  with  the  intention  that  the  grantee 
should  take  it,  although  nothing  should  be  said,  it  will 
be  a  good  delivery.2  But  the  intention  may  be  mani- 
fested by  still  more  informal  proceedings.  The  deed 
need  not  be  actually  delivered  if  the  grantor  intends  the 
execution  to  have  the  effect  of  a  delivery,' and  the  parties 
act  upon  the  presumption.3  Thus  leaving  the  deed 
to  be  recorded,  if  done  with  the  knowledge  of  the  grantee, 
and  more  particularly  when  this  is  done  wTith  the  evident  or 
expressed  intention  that  the  title  shall  pass  to  the  grantee, 
will  ordinarily  be  held  a  good  delivery.4  But  the  intention 
that  the  registration  is  to  operate  as  a  delivery  must  be 

1  Johnson  v.  Baker,  4  B.  &  Aid.  440;  Adams  v.  Frye,  3  Mete.  109;  Ford  v. 
James,  2  Abb.  Pr.  162;  Roberts  v.  Jackson,  1  Wend.  478;  Black  v.  Lamb,  12 
N.  J.  Eq.  116 ;  Black  v.  Shreve,  13  N.  J.  457 ;  Den  v.  Farlee,  1  N.  J.  279 ;  Lit- 
tle v.  Gibson,  39  N.  H.  505;  Williams  v.  Sullivan,  10  Rich.  Eq.  217;  Morris  v. 
Henderson,  37  Miss.  501 ;  Wolverton  v.  Collins,  34  Iowa,  238. 

2  Souverbye  v.  Arden,  1  Johns.  Ch.  253 ;  Scrugham  v.  Wood,  15  Wend. 
545 ;  Pennsylvania  Co.  v.  Dovey,  64  Pa.  St.  260 ;  Stewart  v.  Weed,  11  Ind.  92 ; 
Mills  v.  Gore,  20  Pick.  28 ;  Methodist  Church  v.  Jacques,  1  Johns.  Ch.  456 ; 
Williams  v.  Sullivan,  10  Rich.  217. 

3  Walker  v.  Walker,  42  111.  311 ;  Rogers  v.  Carey,  47  Mo.  235. 

*  Parmelee  v.  Simpson,  5  Wall.  86;  Elmore  v.  Marks,  39  Vt.  538;  Pennsyl- 
vania Co.  v.  Dovey,  64  Pa.  St.  260;  Folly  v.  Vantuyl,  9  N.  J.  153 ;  Cooper  v. 
Jackson,  4  Wis.  549 ;  Jackson  v.  Cleveland,  15  Mich.  101 ;  Somers  v.  Pumphrey, 
24  Ind.  240;  Jackson  v.  Leek,  12  Wend.  107;  Jackson  v.  Phipps,  12  Johns. 

645 


§    814  THE    REQUISITES    OF    A    DEED.  [PART    III. 

shown.1  The  execution  of  a  deed  before  witnesses  will  be 
a  fact  from  which  delivery  may  be  presumed.2  On  the 
other  hand,  if  after  execution  the  deed  is  retained  by  the 
grantor  for  any  purpose  which  prevents  the  transaction  from 
being  complete,  as  where  it  is  held  as  security  for  the  pur- 
chase-money, there  will  be  no  presumption  of  delivery.3  In 
order  that  any  acts  may  constitute  a  sufficient  delivery,  ex- 
cept in  the  case  of  an  escrow,  the  grantor  must  part  with  all 
control  of  the  deed.  If  he  retains  the  control  in  any  manner, 
as  where  he  makes  the  delivery  conditionally,  the  delivery 
will  not  be  sufficient.4  Where  the  grantor  is  a  corporation, 
nothing  more  is  usually  required  to  make  a  good  delivery 
than  that  the  deed  should  be  executed  and  the  common  seal 
of  the  corporation  affixed  to  the  deed.  But  if  the  corpo- 
ration, in  executing  the  deed,  appoint  an  agent  to  make  a 
delivery,  the  formal  delivery  will  be  required.5  Where  the 
grantee  is  a  corporation,  a  delivery  to  an  authorized  agent 
and  acceptance  by  him  are  considered  the  acts  of  the  cor- 
poration, and,  therefore,  constitute  a  sufficient  delivery  and 
acceptance.6 

§  814.  Delivery  to  stranger,  when  assent  ef  grantee 
presumed. — Although  some  doubt  was  entertained  at  an 

418;  Jackson  v.  Richards,  6  Cow.  G17;  Stillwell  v.  Hubbard,  20  Wend.  44; 
Mills  v.  Gore,  20  Pick.  28;  Hedge  v.  Drew,  12  Pick.  141;  Parker  i>.  Hill,  8 
Mete.  447 ;  Berkshire  Mut.  Fire  Ins.  Co.  v.  Sturgis,  13  Gray,  177;  Hawks  v. 
Pike,  105  Mass.  560;  Hatch  v.  Bates,  54  Me.  139;  Porters.  Buckingham,  2 
Harr.  197;  Boody  v.  Davis,  20  N.  H.  140;  Boardman  v.  Dean,  34  Pa.  St.  252; 
Baldwin  v.  Maultsby,  5  Ired.  505 ;  Oliver  v.  Stone,  24  Ga.  63  ;  Denton  v.  Perry, 
5  Vt.  382.     See  Robinson  v.  Gould,  26  Iowa,  63 ;  Cecil  v.  Beaver,  28  Iowa,  241. 

1  Maynard  v.  Maynard,  10  Mass.  456;  Jackson  v.  Phippsj  12  Johns.  418; 
Elsey  v.  Metcalf,  1  Denio,  326  ;  Pennel  v.  Weyant,  2  Harr.  501 ;  Jones  v.  Bush, 
4  Harr.  1. 

2  Moore  v.  Hasleton,  9  Allen,  106 ;  Howe  v.  Howe,  99  Mass.  98. 

3  Jackson  v.  Dunlap,  1  Johns.  Cas.  114. 

*  Cook  v.  Brown,  34  N.  H.  476 ;  Phillips  v.  Houston,  5  Jones  L.  302  ;  Dear- 
mond  v.  Dearmond,  10  Ind.  191 :  Somers  v.  Pumphrey,  24  Ind.  240;  Rivard  v. 
Walker,  39  111.  413. 

5  3  Washb.  on  Real  Prop.  287,  2s8;  Co.  Lit.  22  n,  36  n. 

6  Western  R.  R.  v.  Babcock,  6  Mete  350. 

646 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    814 

early  day  as  to  its  validity,  it  seems  now  to  be  well  settled 
that  if  a  deed  is  delivered  to  a  stranger  for  the  grantee,  even 
though  the  grantee  has  not  authorized  the  third  person  to 
receive  it,  if  it  is  subsequently  assented  to  by  the  grantee, 
it  will  constitute  a  good  delivery.1  But  the  grantor  must 
part  with  his  entire  control  over  the  deed.  If  the  deed  is 
handed  to  a  stranger  to  be  delivered  to  the  grantee  when  the 
grantor  should  so  direct,  or  the  direction  is  to  deliver  it  at  a 
specified  time,  unless  the  order  is  countermanded,  if  the 
circumstances  do  not  make  the  deed  an  escrow,  the  delivery 
to  the  stranger  will  not  be  sufficient  to  pass  the  title.2  And 
although  the  law  presumes  that  a  delivery  of  a  deed  to  the 
grantee  personally  is  done  with  the  intention  of  passing  the 
title,  there  is  no  such  presumption  indulged  in  when  the 
deed  is  handed  to  a  stranger.  To  make  the  delivery  to  a 
stranger  effectual,  the  intention  with  which  the  delivery  was 
made  must  be  expressed  at  the  time.  There  are,  however, 
no  formal  words  or  declarations  required.3  But  where  the 
deed  was  mailed  at  the  request  of  the  grantee,  the  deposit 

1  Doe  v.  Knight,  5  B.  &  C.  671 ;  Hatch  v.  Bates,  54  Me.  139 ;  Hatch  v.  Hatch, 
•9  Mass.  307;  Marsh  v.  Austin,  3  Mete.  412;  O'Kelly  v.  O'Kelly,  8  Mete.  439; 
Ruggles  v.  Lawson,  13  Johns.  285;  Church  v.  Gilman,  15  Wend.  656;  Boody 
v.  Davis,  20  N.  H.  140 ;  Buflfum  v.  Green,  5  jST.  H.  71 ;  Belden  v.  Carter,  4  Day, 
€6;  Stephens  v.  Kinehart,  72  Pa.  St.  440;  Stephens  v.  Huss,  64  Pa.  St.  26; 
Wesson  v.  Stevens,  2  Ired.  Eq.  557 ;  Phillips  v.  Houston,  5  Jones  L.  302  ;  Cloud 
v.  Calhoun,  10  Rich.  Eq.  358;  Oliver  v.  Stone,  24  Ga.  63;  Mallett  v.  Page,  8 
Ind.  364;  Stewart  v.  Weed,  11  Ind.  92;  Mitchell  v.  Ryan,  3  Ohio  St.  382; 
Morrison  v.  Kelly,  22  111.  626;  Kingsbur}-  v  Burnside,  58  111.  310;  Cooper  v_ 
Jackson,  4  Wis.  553 ;  Cecil  v.  Beaver,  28  Iowa,  241. 

2  Prestman  v.  Baker,  30  Wis.  644;  Phila.  W.  &  B.  R.  R.  v.  Howard,  13 
How.  331;  Warrall  v.  Munn,  1  Seld.  229;  Graves  v.  Dudley,  20  N.  Y.  76; 
Parker  v.  Parker,  1  Gray,  409 ;  Berry  v.  Anderson,  22  Ind.  39 ;  Black  v.  Shreve, 
13  N.  J.  459 ;  Howe  v.  Dewing,  2  Gray,  476  ;  Dyson  v.  Bradshaw,  23  Cal.  528  : 
Cook  v.  Brown,  34  N.  H.  476;  Phillips  v.  Houston,  6  Jones  L.  302;  Millett  v. 
Parker,  2  Mete.  (  Ky.)  613 ;  Shirley  v.  Ayres,  14  Ohio,  310;  Fitch  v.  Bunch,  30 
Cal.  213. 

8  Church  v.  Gilman,  15  Wend.  656;  Souverbye  v.  Arden,  1  Johns.  Ch.255; 
Maynard  v.  Maynard,  10  Mass.  456;  Tibbals  v.  Jacobs,  31  Conn.  428;  Folk  v. 
Varn,  9  Rich.  Eq.  303 ;  Mitchell  v.  Ryan,  3  Ohio  St.  377 ;  Cecil  v.  Beaver,  28 
Iowa,  240. 

647 


§    814  THE    UE<iLTSITES    OF    A    DEED.  [PAET    III. 

in  the  post-office  was  held  to  be  a  good  delivery.1  The 
knowledge  and  assent  of  the  grantee  are  just  as  necessary 
in  this  mode  of  delivery  as  in  the  delivery  or  tender 
of  the  deed  to  the  grantee  himself,  and  until  acceptance, 
expressed  or  presumed,  the  delivery  is  inoperative  to  pass 
the  title.2  In  New  Hampshire  it  has  been  held  that  a  deed 
is  revocable  by  the  grantor  after  delivery  until  it  is  accepted 
by  the  grantee.3  Delivery  and  acceptance  are  "  mutual  and 
concurrent  acts,"  and  unless  the  delivery  is  an  open  and 
continuing  one  an  acceptance  at  a  subsequent  period  will 
not  give  validity  to  the  deed.4  But  the  subsequent  assent 
will  be  good,  although  the  grantor  may  have  died  in  the 
meantime.5  The  assent  of  the  grantee  need  not  always  be 
proved  affirmatively  and  expressly.  It  may  in  certain  cases 
be  presumed  from  the  delivery.  If  the  grantee  was  aware 
of  the  delivery  for  his  use,  and  the  conveyance  was  bene- 
ficial to  him,  his  assent  may  be  presumed  from  the  time  of 
delivery.6  And  if  it  is  questioned,  it  will  be  necessary  to 
show  affirmatively  that  the  grantee  was  in  esse,  in  order  to 

1  McKinney  v.  Rhoades,  5  Watts,  343. 

2  Young  v.  Guilbeau,  3  Wall.  636 ;  Jackson  v.  Bodle,  20  Johns.  184 ;  Wil- 
sey  v.  Dennis,  44  Barb.  359;  Bullitt  v.  Taylor,  34  Miss.  741 ;  Mallett  v.  Page, 
8  Ind.  364 ;  Boardman  v.  Dean,  34  Pa.  St.  252 ;  Derry  Bank  v.  Webster,  44  N. 
H.  268;  Jackson  ».  Phipps,  12  Johns.  422;  Somers  v.  Pumphrey,  24  Ind.  243  : 
Berkshire  Mut.  Fire  Ins.  Co.  v.  Sturgis,  13  Gray,  177  ;  Dike  v.  Miller,  24  Texas, 
417;  Mitchell  v.  Ryan,  3  Ohio  St.  386;  Mills  v.  Gore,  20  Pick.  28;  Still  well  v. 
Hubbard,  20  Wend.  44. 

3  Derry  Bank  v.  Webster,  44  N.  H.  268 ;  Johnson  v.  Farley,  45  N.  H.  509. 

*  Jackson  v.  Dunlap,  1  Johns.  Cas.  114;  Jackson  v.  Bodle,  20  Johns.  187; 
Church  v.  Gilman,  15  Wend.  656  ;  Canning  v.  Pinkham,  1  N.  H.  353  ;  Buffum 
v.  Green,  5  N.  H.  71 ;  Hulick  v.  Scovil,  9  111.  177. 

5  Hatch  v.  Hatch,  9  Mass.  307  ;  Foster  v.  Mansfield,  3  Mete.  412  ;  O'Kelly 
v.  O'Kelly,  8  Mete.  439 ;  Stephens  v.  Huss,  54  Pa.  St.  26  ;  Shaw  v.  Hay  ward,  7 
Cush.  175 ;  Mather  v.  Corless,  103  Mass.  568.  But  see  State  Bank  v.  Evans,  S 
Green,  155. 

6  Robinson  v.  Gould,  26  Iowa,  93 ;  Cecil  v.  Beaver,  28  Iowa,  241.  But  an 
acceptance  will  not  be  presumed,  as  long  as  the  grantee  is  ignorant  of  the  con- 
veyance. Maynard  v.  Maynard,  10  Mass.  456 ;  Prestman  v.  Baker,  30  Wis.  644  ; 
Baker  v.  Haskell,  47  N.  H.  479 ;  Thompson  v.  Lloyd,  49  Pa.  St.  128. 

648 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    815 

support  the  presumption  of  acceptance.1  But  this  presump- 
tion in  reference  to  the  assent  of  the  grantee  is  only  prima 
facie.  If  the  grantee  actually  dissents,  of  course  no  title 
passes.2  But  where  the  grantee  is  under  disabilities,  as  in 
the  case  of  infant  grantees,  and  perhaps  married  women, 
the  presumption  of  assent  to  a  beneficial  conveyance  becomes 
a  rule  of  law,  and  knowledge  of  the  conveyance  and  deliv- 
ery is  not  essential.3  The  relation  existing  between  the 
person  receiving  the  deed  and  the  grantee  may  often  make 
the  assent  and  acceptance  of  the  deed  by  the  former  suffi- 
cient to  give  the  title  to  the  grantee.  For  example,  an  ac- 
ceptance by  the  father  or  mother  of  a  deed  to  an  infant 
child  is  a  good  acceptance.4  And  on  the  same  ground  at 
common  law,  a  conveyance  to  a  married  woman  was  void  if 
her  husband  dissented.  But  his  assent  is  binding  upon  her 
even  after  his  death.5    ^ 

§  815.  Escrows.  —  Although  the  delivery  of  the  deed  will 
pass  the  title,  if  such  is  the  intention  of  the  grantor,  and 
such  intention  will  be  presumed  in  the  absence  of  anything 
to  the  contrary,  yet  there  may  be  a  conditional  delivery, 
conditioned  that  the  deed  shall  only  take  effect  upon  the 
happening  of  an  event  specified  at  the  time  of  delivery. 

1  Hulick  v.  Scovil,  9  111.  177 ;  Walker  v.  Walker,  42  HI.  311 ;  Bensley  v. 
Atwill,  12  Cal.  231. 

2  Peavey  v.  Tilton,  18  N.  H.  152 ;  Townson  v.  Tickell,  3  B.  &  Aid.  36 ; 
Younge  v.  Guilbeau,  3  Wall.  641 ;  Tompkins  v.  Wheeler,  16  Pet.  119;  Read 
b.  Robinson,  6  Watts  &  S.  329 ;  Fonda  v.  Sage,  46  Barb.  109 ;  Welsh  v.  Sack- 
ett,  12  Wis.  243 ;  Rogers  v.  Carey,  47  Mo.  232 ;  Dikes  v.  Miller,  24  Texas,  423. 

3  Baker  v.  Haskell,  47  N.  H.  479;  Spencer  v.  Carr,  45  N.  Y.  410;  Gregory 
v.  Walker,  38  Ala.  26 ;  Rivard  t;.  Walker,  39  111.  413 ;  Cecil  v.  Beaver,  28  Iowa, 
241 ;  Mitchell  v.  Ryan,  3  Ohio  St.  387 ;  Peavev  v.  Tilton,  18  N.  H.  152 ;  Con- 
cord Bank  v.  Bellis,  10  Cush.  378. 

*  Baker  v.  Haskell,  47  N.  H.  479;  Souverbye  v.  Arden,  1  Johns.  Ch.  456; 
Jaques  v.  Methodist  Church,  17  Johns.  577  ;  Gregory  v.  Walker,  38  Ala.  26; 
Bryan  v.  Wash,  6  111.  557  ;  Morrison  v.  Kelly,  22  111.  612  :  Rogers  v.  Carey,  47 
Mo.  236;  Cloud  v.  Calhoun,  10  Rich.Eq.  362. 

5  Butler  &  Baker's  Case,  3  Rep.  26;  Melvin  v.  Prop'rs,  etc.,  16  Pick.  167  f 
Foley  v.  Howard,  8  Clarke  (Iowa)  36. 

649 


§    815  THE    REQUISITES    OF    A   DEED.  [PART    III. 

Such  a  deed  is  called  an  escrow.  In  order  that  a  deed 
may  be  an  escrow,  it  must  be  delivered  to  a  stranger  to  hold 
until  the  condition  is  performed,  and  then  to  be  delivered  to 
the  grantee.  If  the  delivery  is  made  to  the  grantee,  it  will 
be  an  absolute  delivery,  whatever  conditions  may  be  annexed 
thereto,  and  the  title  will  immediately  pass  to  the  grantee.1 
But  if  the  delivery  to  the  grantee  is  merely  for  the  purpose 
of  having  it  delivered  immediately  to  a  third  person  to  hold 
as  an  escrow,  the  delivery  to  the  grantee  will  not  vest  a  title 
in  him,  the  intent,  with  which  it  was  done,  controlling  its 
effect.2  Where  the  deed  is  delivered  to  a  stranger  for  the 
grantee,  whether  it  shall  operate  as  a  present  deed,  or  as  an 
escrow,  depends  upon  the  intention  of  the  parties,  as  ex- 
pressed at  the  time  of  delivery.  If  the  deed  is  handed  to 
the  stranger  with  the  instruction  that  the  delivery  to  the 
grantee  shall  depend  upon  the  happening  of  a  condition,  it 
is  an  escrow;  but  if  the  delivery  is  made  to  the  stranger, 
although  accompanied  by  instructions  that  it  shall  not  be 
delivered  until  the  death  of  the  grantor,  it  is  a  grant  in  prce- 
senti?  The  importance  of  distinguishing  escrows  from  other 
deeds  like  those  above  described  lies  in  this  fact :  Escrows  can 
operate  only  from  the  time  that  the  condition  is  performed. 
A  delivery  before  the  performance  of  the  condition  will  not 

1  Fairbanks  v.  Metcalf,  8  Mass.  230;  Ward  v.  Lewis,  4  Pick.  520;  Gilbert 
».N.  A.  F.  Ins.  Co.,  23  Wend.  43;  Worrall  v.  Munn,  6  N.  Y.  229;  Blacky 
Shreve,  13  N.  J.  458 ;  Lawton  v.  Sager,  11  Barb.  349 ;  Moss  v.  Riddle,  5  Cranch, 
-351;  Cin.,  W.  &  Z.  R.  R.  v.  Iliff,  13  Ohio  St.  249;  M.  &  Ind.  Plank  Road  Co. 
v.  Stevens,  10  Ind.  1 ;  State  v.  Chrisman,  2  Ind.  126 ;  Foley  r.  Cowgill,  5  Blackf. 
18 ;  Blake  v.  Fash,  44  111.  305 ;  Jane  v.  Gregory,  42  111.  416 ;  Herdman  v.  Brat- 
ten,  2  Harr.  396 ;  Fireman's  Ins.  Co.  v.  McMillan,  29  Ala.  160.  But  see  Bibb 
<o.  Reid,  3  Ala.  88. 

2  Murray  v.  Stair,  2  B.  &  C.  82 ;  Jackson  v.  Sheldon,  22  Me.  569 :  Gilbert 
v.  N.  A.  Fire  Ins.  Co.,  23  Wend.  43;  Simonton's  Estate,  4  Watts,  180;  Den  v. 
Partee,  2  Dev.  &  B.  530.  But  see  Fairbanks  v.  Metcalf,  8  Mass.  239;  Branian 
v.  Bingham,  26  N.  T.  483. 

3  Foster  v.  Mansfield,  3  Mete.  414;  Cook  v.  Brown,  34  N.  H.  465 ;  Tooley  t>. 
Dibble,  2  Hill,  641 ;  Braman  v.  Bingham,  26  N.  Y.  483 ;  Hathaway  v.  Payne,  34 
H.  Y.  106 ;  Price  v.  P.  &  Ft.  W.  &  C.  R.  R.,  34  111.  13. 

650 


€H.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    815 

have  the  effect  of  passing  the  title  to  the  grantee,  not  even 
against  innocent  purchasers  for  value  of  the  grantee.1  But 
if  the  deed  is  one  operating  immediately,  even  though  the 
bailee  of  the  deed  is  instructed  not  to  deliver  it  before  the 
grantor's  death,  it  passes  the  title  immediately,  and  a  deliv- 
ery before  the  grantor's  death  will  be  good.  Indeed,  it  does 
not  seem  that  any  formal  delivery  to  the  grantee  is  required.2 
For  this  reason  it  is  always  necessary  in  delivering  a  deed 
.as  an  escrow  to  be  explicit  as  to  the  intent  with  which  the 
•delivery  was  made,  and  it  would  be  much  more  prudent  if 
the  delivery  is  accompanied  by  a  memorandum  in  writing, 
explaining  the  character  of  the  delivery  to  the  bailee,  and 
the  terms  of  the  condition  upon  which  the  delivery  to  the 
grantee  depends.  No  technical,  or  formal  language  is  re- 
quired, provided  the  intention  is  made  clear  by  the  use  of 
any  other  language.3  In  an  escrow  no  title  vests  in  the 
grantee  until  the  second  delivery.4  But  though  the  deed 
after  the  first  delivery  can  only  be  revoked  by  the  grantor 
for  default  in  the  performance  of  the  condition,5  the  prem- 

1  Fairbanks  v.  Metcalf,  8  Mass.  230;  Souverbye  v.  Arden,  1  Johns.  Ch.  240; 
Hinman  v.  Booth,  21  Wend.  267;  People  v.  Bostwick,  32  N.  Y.  450;  Stiles  v. 
Brown,  16  Vt.  563  ;  Smith  v.  So.Royalton  Bk.,  32  Vt.  341 ;  Black  v.  Shreve,  13 
N.  J.  458 ;  Jackson  v.  Sheldon,  22  Me.  569 ;  Blight  v.  Schenck,  10  Pa.  St.  285 ; 
Berry  v.  Anderson,  22  Ind.  40;  Illinois  Cent.  R.  R.  v.  McCullaugh,  59  111.  170; 
Ghipman  v.  Tucker,  38  Wis.  43 ;  20  Am.  Rep.  1.  In  Rhodes  v.  Gardiner,  30 
Me.  110,  it  was  held  that  sufficient  title  passed  by  such  an  unauthorized  deliv- 
ery to  give  a  good  title  to  an  innocent  purchaser  from  the  grantee. 

2  Murray  v.  Stair,  2  B.  &  C.  82;  Shaw  v.  Efayward,  7  Cush.  175;  Foster  v. 
Mansfield,  3  Mete.  412;  O'Kelly  v.  O'Kelly,  8  Mete.  436;  Mathers.  Corless, 
103  Mass.  568 ;  Braman  v.  Bingham,  26  N.  Y.  483 ;  Hathaway  v.  Payne,  34  N. 
Y.  106;  Price  v.  P.,  &  Ft.  W.  &  C.  R.  R.,  34  111.  13. 

3  Jackson  v.  Catlin,  2  Johns.  248;  Clark  v.  Gifford,  10  Wend.  310;  Gilbert 
v.  N.  A.  Fire  Ins.  Co.,  23  Wend  43;  Fairbanks  v.  Metcalf,  8  Mass.  230;  Jack- 
son v.  Sheldon,  22  Me.  569;  State  v.  Peck,  53  Mo.  293;  White  v.  Bailey,  14 
Conn.  271 ;  Shoenberger  v.  Hackman,  37  Pa.  St.  87  ;  Millett  v.  Parker,  2  Mete. 
(Ky.)  616. 

4  Frost  v.  Beekman,  1  Johns.  Ch.  297 ;  James  v.  Vanderheyden,  1  Paige, 
385;  Everts  v.  Agnes,  4  Wis.  351. 

5  Worrall  v.  Munn,  6  N  .  Y.  229;  Millett  v.  Parker,  2  Mete.  (Ky.)  608; 
Wright  v.  Shelby  R.  R.,  16  B.  Mon.  4. 

651 


§    816  THE    REQUISITES    OF    A    DEED.  [PART    III. 

ises  so  far  continue  to  be  the  property  of  the  grantor  that 
they  can  be  levied  upon  by  the  grantor's  creditors,  and  their 
attachments  will  take  precedence  to  the  title  acquired  by  the 
"rantee.1  But  notwithstanding  the  deed  does  not  take  effect 
until  the  second  delivery,  yet  for  many  purposes,  after  the 
second  delivery,  the  deed  relates  back  to  the  first  delivery, 
and  takes  effect  nunc  pro  tunc.  This  is  the  case  when  the 
doctrine  of  relation  is  necessary  on  account  of  some  inter- 
vening obstacle  which  would  otherwise  invalidate  the  deed,, 
as  where  the  grantor  dies  before  the  second  delivery.2 

§  816.  Registration. — Except  in  respect  to  the  enroll- 
ment of  deeds  of  bargain  and  sale,  deeds  were  not  required 
by  the  English  law  to  be  registered  or  recorded.  And,  al- 
though a  system  of  registration  has  been  in  operation  since  * 
the  reign  of  Queen  Anne  in  some  of  the  counties  of  England, 
no  general  registration  law  has  ever  been  in  force  there.3 
But  in  the  United  States  from  an  early  period,  every  State 
in  the  Union  has  had  a  general  registration  law  and  offieers 
appointed,  whose  duty  it  was  to  record  all  deeds  of  convey- 
ance, and  other  written  instruments  mentioned  in  the 
statute.  The  object  of  recording  a  deed  is  to  furnish  a 
subsequent  purchaser  with  reliable  means  of  investigating 
titles.  The  recording  of  a  deed  is  not  essential  to  its  validity 
as  between  the  parties  and  all  others  having  any  other  actual 
or  constructive  notice  of  it.  If  a  subsequent  purchaser  has 
notice  of  a  prior  unrecorded  deed,  or  if  he  is  a  voluntary 
purchaser,  the  prior  deed  will  be  a  good  conveyance  against 

1  Frost  v.  Beekman,  1  Johns.  Ch.  297;  Jackson  v.  Catlin,  2  Johns.  248; 
Jackson  v.  Rowland,  6  Wend.  666. 

2  Ruggles  v.  Lawson,  13  Johns.  285;  Jackson  v.  Rowland,  6  Wend.  666; 
Shirley  v.  Ayres,  14  Ohio,  307;  Price  v.  P.,  Ft.  W.  &  C.  R.  R.,  34  III.  34; 
Evans  v.  Gibbs,  6  Humph.  405 ;  Hall  v.  Harris,  5  Ired.  Eq.  303 ;  Frost  v.  Beek- 
man, 1  Johns.  Ch.  257 ;  Jackson  v.  Catlin,  2  Johns.  248 ;  Hatch  v.  Hatch,  9 
Mass.  307  ;  Carr  v.  Hoxie,  5  Mason,  60. 

3  3  Washb.  on  Real  Prop.  313 ;  Williams  on  Real  Prop.  466,  467. 

652 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    816 

him.1  The  record  simply  furnishes  evidence  of  the  convey- 
ance, and  the  law  provides  that  if  a  deed  is  recorded,  the 
record  is  constructive  notice  of  the  conveyance,  and  that  an 
unrecorded  deed  shall  not  prevail  against  subsequent  pur- 
chasers without  notice.  If  notice  of  the  conveyance  is  ob- 
tained in  any  other  way  the  deed  will  be  as  valid  as  if  it 
was  recorded.2  And  notice  after  the  delivery  of  the  deed, 
but  before  the  payment  of  the  consideration,  will  be  suffi- 
cient notice  to  give  precedence  to  the  prior  unrecorded  deed.3 
But  in  order  that  the  record  may  be  constructive  notice  of 
the  deed  and  its  contents,  the  deed  must  be  a  valid  one,  and 
possess  all  the  requisites  of  a  valid  deed.  The  record  of  a 
defective  deed  furnishes  no  notice  even  to  one  who  has  seen 
it.  And  the  deed  or  other  instrument  must  further  be  one 
required  or  permitted  by  law  to  be  recorded.*     Generally 

1  Hill  v.  Epley,  31  Pa.  St.  335;  Barney  v.  McCarty,  15  Iowa,  514;  Galland 
v.  Jackman,  26  Cal.  87 ;  Shotwell  v.  Harrison,  22  Mich.  410;  Dixon  v.  Lacoste, 
1  Smed.  &  M.  107 ;  Wilkins  v.  May,  3  Head,  176  ;  Maupin  v.  Emmons,  47  Mo. 
306;  Patterson  v.  Dela  Ronde,  8  Wall.  300;  Morrison  v.  Kelly,  22  111.610; 
Jamaica  Pond  v.  Chandler,  9  Allen,  169;  Speer  v.  Evans,  47  Pa.  St.  144;  Belk 
v.  Massey,  11  Rich.  614 ;  Ellison  v.  Wilson,  36  Vt.  67. 

2  Earle  v.  Fiske,  103  Mass.  492;  Trull  v.  Bigelow,  16  Mass.  406;  Stephens 
v.  Morse,  47  N.  H.  433;  Murphy  v.  Nathans,  46  Pa.  St.  512;  King  v.  G-ilson, 
32  111.  654;  Sicard  v.  Davis,  6  Pet.  124;  Irvin  v.  Smith,  17  Ohio,  226;  Van 
Rensselaer  v.  Clark,  17  Wend.  25  ;  Jackson  v.  Leek,  19  Wend.  339 ;  Corliss  v. 
Corliss,  8  Vt.  373 ;  Wells  v.  Morrow,  38  Ala.  125 ;  Martin  v.  Quattlebaum,  3 
McCord,  205;  Rogers  v.  Jones,  8  N.  H.  264;  Burkhalterv.  Ector,  25  Ga.  55; 
Ricks  v.  Reed,  19  Cal.  571;  Lillard  v.  Rucker,  9  Yerg.  64;  Dixon  v.  Doe,  1 
Smed.  &  M.  70;  Givan  v.  Doe,  7  Blackf.  210;  Applegate  v.  Gracy,  9  Dana, 
224;  Hopping  v.  Burnham,  2  Greene  (Iowa),  39;  Fitzhugh  v.  Barnard,  12 
Mich.  110. 

3  Blanchard  v.  Tyler,  12  Mich.  339. 

4  De  Witt  v.  Moulton,  17  Me.  418;  Shaw  v.  Poor,  6  Pick.  88;  Blood  v 
Blood,  23  Pick.  80;  Graves  v.  Graves,  6  Gray,  391 ;  Isham  v.  Bennington  Co., 
19  Vt.  230 ;  Peck  v.  Mallams,  10  N.  Y.  518 ;  Carter  v.  Champion,  8  Conn.  549 ; 
Meighen  v.  Strong,  6  Miss.  177;  Kerns  v.  Swope,  2  Watts,  75;  McKean  v. 
Mitchell,  35  Pa.  St.  269;  Bossard  v.  White,  9  Rich,  Eq.  483;  Harper  v.  Barsh, 
10  Rich.  Eq.  149 ;  Harper  v.  Tapley,  35  Miss.  510 ;  Herndon  v.  Kimball,  7  Ga. 
432;  Burnham  v.  Chandler,  15  Texas,  441  ;  Stevens  v.  Hampton,  46  Mo.  408; 
Bishop  v.  Schneider,  46  Mo.  472 ;  2  Am.  Rep.  533 ;  Ely  v.  Wilcox,  20  Wis.  529 ; 

653 


§    817  THE    REQUISITES    OF    A    DEED.  [PAET    HI. 

an  unrecorded  deed  will  be  good  against  subsequently  at- 
taching creditors,  as  well  as  against  subsequent  purchasers 
with  notice.  But  in  several  of  the  States,  under  their  local 
law,  a  deed  must  be  recorded  to  be  good  against  creditors.1 
If  a  deed  has  been  properly  recorded,  in  most  of  the  States 
it  may  be  used  in  evidence  without  any  other  proof  of  its 
execution.2  And  in  some  of  them  a  certified  copy  of  the 
record  is  made  original  evidence  in  establishing  the  claim 
of  title  from  one  grantor  to  another.3  But  in  other  of  the 
States  the  deed  must  be  proved  as  at  common  law,  unless 
it  comes  under  the  head  of  ancient  deeds,  i.e.,  deeds  thirty 
years  old. 

§  817.  To  whom  and  of  what  is  record  constructive 
notice.  —  This  record  is  constructive  notice  to  only  subse- 
quent purchasers  claiming  under  the  grantor,  i.e.,  those  who 
acquire  an  interest  in  the  property  subsequently,  and  as 
privy  to  the  grantor,  whether  as  grantee,  mortgagee,  or  at- 

Pringle  v.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Stewart  v.  McSweeney,  14 
Wis.  468.  In  Musgrove  v.  Bouser,  (5  Oreg.  313  ;  20  Am.  Rep.  737),  the  Supreme 
Court  of  Oregon  held  that  the  record  of  a  deed,  not  properly  admitted  to  rec- 
ord, furnishes  constructive  notice  of  the  contents  of  the  deed  to  all  who  have 
actually  seen  the  record.  It  is  also  a  general  rule  that  the  record  must  be 
properly  made,  in  order  to  raise  constructive  notice  to  subsequent  purchasers ; 
and  it  has  been  held  in  Wisconsin,  though  denied  in  Missouri  and  Pennsyl- 
vania, that  a  record  without  an  index  furnishes  no  notice.  Pringle  v.  Dunn„ 
37  Wis.  449;  19  Am.  Rep.  772;  Bishop  v.  Schneider,  46  Mo.  472;  2  Am.  Rep. 
553;  Schell  v.  Stein,  76  Pa.  St.  398;  18  Am.  Rep.  416. 

1  Guerrant  v.  Anderson,  4  Rand.  208 ;  Lillard  v.  Rucker,  9  Yerg.  64 ;  Ring 
v.  Gray,  6  B.  Mon.  368. 

2  Younge  v.  Guilbeau,  3  Wall.  640 ;  Houghton  v.  Jones,  1  Wall.  702 ;  Car- 
penter v.  Dexter,  8  Wall.  532;  Ball  v.  McCawley,  29  Ga.  355;  Hutchinson  v. 
Rust,  2  Gratt.  394 ;  Doe  v.  Prettyman,  1  Houst.  339 ;  Samuels  v.  Borrowscale,. 
104  Mass.  207;  Simpson  v.  Mundy,  3  Kan.  181 ;  Young  u.Ringo,  1  B.Mon.  30; 
Clark  v.  Troy,  20  Cal.  219;  Fell  v.  Young,  63  111.  106;  Sanders  v.  Bolton,  26- 
Cal.  405 ;  Hinchliffe  v.  Hinman,  18  Wis.  135 ;  Toulmin  v.  Austin,  5  Stew.  &  P. 
410. 

3  Scanlan  v.  Wright,  Samuels  v.  Borrowscale,  104  Mass.  207 ;  Harvey  v. 
Mitchell,  31  N.  H.  582;  Farrar  v.  Fessenden,  39  N.  H.  268;  Dixon  v.  Doe,  6 
Blackf.  106;  Bogan  v.  Frisbv,  36  Miss.  178. 

654 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    817 

taching  creditor.1  It  is  not  notice  to  those  who  claim  inde- 
pendently of  the  grantor,  or  acquire  their  interest  from  the- 
grantor  by  a  prior  deed.2  It  has  been  held  by  some  of  the 
courts  that  a  purchaser  from  the  heir  cannot  claim  prece- 
dence for  his  recorded  deed  over  the  unrecorded  deed  of  the 
ancestor,  on  the  ground  that  since  the  unrecorded  deed  was 
a  good  conveyance  against  the  heir,  nothing  descended  to 
the  heir  which  he  could  convey.3  But  the  better  opinion 
seems  to  be  that  the  deed  from  the  heir  in  such  a  case  would 
be  entitled  to  priority,  and  would  vest  the  superior  title  in 
the  grantee  of  the  heir,  for  the  reason  that  the  registry  laws 
declare  a  deed  void  against  all  subsequent  purchasers  with- 
out notice  if  it  has  not  been  recorded.*  If  one  has  a  recorded 
deed  which  has  a  priority  over  an  antecedent  unrecorded 
deed,  the  holder  of  the  recorded  deed  acquires  an  absolute 
paramount  title,  which  he  can  convey  even  to  those  who 
have  notice  of  the  prior  unrecorded  deed.5  And  if  the  re- 
corded deed  is  to  one  who  has  notice  of  the  prior  deed, 
although  in  his  hands  the  recorded  deed  does  not  have  pre- 
cedence, if  he  conveys  to  one  having  no  notice,  his  grantee 
acquires  a  good  title.  But  if  the  prior  deed  is  recorded 
before  the  conveyance  by  the  first  grantee  who  has  had 
notice,  the  grantee  of  the  second  conveyance  is  bound  by 

1  Tilton  v.  Hunter,  24  Me.  35 ;  Shaw  v.  Poor,  6  Pick.  85 ;  Bates  v.  Norcross, 
14  Pick.  224 ;  Flynt  v.  Arnold,  2  Mete.  619 ;  Doe  v.  Beardsley,  2  McLean,  412 ; 
Whittington  v.  Wright,  9  Ga.  23  ;  Miller  v.  Bradford,  12  Iowa,  18 ;  Crockett 
v.  Maguire,  10  Mo.  34;  Losey  v.  Simpson,  3  Stockt.  Ch.  246;  Ely  v.  Wilcox, 
20  Wis.  630. 

2  George  v.  Wood,  9  Allen,  80;  Losey  v.  Simpson,  3  Stockt.  Ch.  246;  Hol- 
ley  v.  Hawley,  39  Vt.  532. 

3  Hill  v.  Meeker,  24  Conn.  211;  Hancock  v.  Beverly,  6  B.  Mon.  532;  Har- 
lan v.  Seaton,  18  B.  Mon.  312. 

4  Earle  v.  Fiske,  103  Mass.  491 ;  Powers  v.  McFerron,  2  Serg.  &  R.  47  ;  Mc- 
Culloch  v.  Endaly,  3  Yerg.  346  ;  Youngblood  v.  Vastine,  46  Mo.  239 ;  Kennedy 
v.  Northrup,  15111.  148. 

6  Lowther  v.  Carlton,  2  Atk.  139;  Trull  v.  Bigelow,  16  Mass.  406;  Bumpus 
».  Platner,  1  Johns.  Ch.  219;  Bell  v.  Twilight,  18  N.  H.  159. 

655 


§    818  THE    REQUISITES    OF    A    DEED.  [PART    III. 

the  constructive  notice.1  Not  only  is  the  record  constructive 
notice  of  the  recorded  deed  and  its  contents,  but  it  will  also 
be  notice  of  all  other  deeds  and  their  contents,  to  which  ref- 
erence is  made  in  the  recorded  deed.2  But  the  record  is 
constructive  notice  of  the  contents  of  the  deed  only  as  they 
appear  upon  the  record.  A  mistake  of  the  register  in  the 
description  of  the  property,  or  the  amount  of  the  mortgage, 
will  fall  upon  the  holder  of  the  deed.3  And  in  some  States 
a  failure  to  index  the  deed  will  deprive  the  record  of  the 
constructive  notice.4  But  no  one  can  take  advantage  of  the 
record  for  the  purpose  of  giving  his  deed  priority  over  an- 
other unrecorded  deed,  who  has  not  paid  a  substantial 
valuable  consideration  therefor,  and  he  must  show  by  extra- 
neous evidence  that  it  has  been  paid.5 

§  818.   From   what  time   does   priority  take   effect. — 

As  a  general  proposition,  in  the  absence  of  special  rules,  the 
priority  acquired  by  the  registration  takes  effect  from  the 
date  of  the  record.6  And  the  date  of  the  record  is  taken  at 
the  time  when  the  deed  was  deposited  for  registration.7  But 
in  some  of  the  States  the  recording  law  provides  that  if  a 

1  Flyntu.  Arnold.  2  Mete.  619;  Trull  v.  Bigelow,  16  Mass.  406;  Adams  v. 
€uddy,  13  Pick.  460;  Bracket  ?>.Ridlon,  54  Me.  434;  Hagthorp  v.  Hook,  1  Gill 
■&  J.  270;  Baylis  v.  Young,  51  111.  127. 

2  White  v.  Foster,  102  Mass.  375;  Gilbert  v.  Peteler,  38  N.  Y.  165;  Aeer  v. 
Westcott,  46  N.  Y.  384;  Cambridge  Valley  Bank  v.  Delano,  48  N.  Y.  326; 
Hamilton  v.  Nutt,  34  Conn.  501 ;  Baker  v.  Matcher,  25  Mich.  53. 

3  Frost  v.  Beekman,  1  Johns.  Ch.  299;  Beekman  v.  Frost,  18  Johns.  544. 
See  ante,  sect.  338. 

*  Pringle  v.  Dunn,  37  Wis.  449;  19  Am.  Rep.  772;  Barney  v.  McCarty,  15 
Iowa,  522 ;  Whatley  v.  Small,  25  Iowa,  188.  Contra,  Bishop  v.  Schneider,  46 
Mo.  472;  2  Am.  Rep.  533;  Schell  v.  Stein,  76  Pa.  St.  398;  18  Am.  Rep.  416. 

5  Boone  v.  Chiles,  10  Pet.  211 ;  Watkins  v.  Edwards,  23  Texas,  447 ;  Parker 
v.  Foy,  43  Miss.  260;  Maupin  v.  Emmons,  47  Mo.  304;  Bishop  v.  Schneider, 
46  Mo.  472 ;  2  Am.  Rep.  533 ;  Shotwell  v.  Harrison,  22  Mich.  410. 

6  4  Kent's  Com.  457  ;  dishing  v.  Hurd,  4  Pick.  252;  Goodsell  v.  Sullivan, 
40  Conn.  83. 

7  Den  v.  Richman,  1  Green  (N.  J.),  52  ;  Nichols  v.  Reynolds,  1  R.  1.30;  Horsley 
v.  Garth,  2Gratt.471;  Bigelowu.  Topliff,  25  Vt.274;  Warnockw.  Wightman, 
1  Brev.  331 ;  Hine  v.  Bobbins,  8  Conn.  347 ;  Gill  v.  Fauntleroy,  3  B.  Mon.  177. 

656 


CH.  XXII.]  THE    REQUISITES    OF    A    DEED.  §    819 

deed  is  recorded  within  the  time  allowed  by  law,  it  relates 
back  to  the  time  of  delivery  of  the  deed,  and  has  priority 
over  a  subsequently  executed  deed  which  has  been  previously 
recorded.  Statutory  provisions  of  this  character  are  to  be 
found  in  Ohio,  Kentucky,  Mississippi,  Georgia,  South  Car- 
olina, Pennsylvania,  Alabama,  Indiana,  Delaware,  Tennessee, 
and  Maryland.1  The  time  allowed  for  recording  varies  with 
the  different  States.  If  in  these  States  a  deed  has  bt,en  re- 
corded after  the  expiration  of  the  time  allowed  by  law,  the 
record  gives  constructive  notice  from  the  time  of  the  record, 
but  does  not  relate  back  to  the  time  of  delivery.2 

§  819.  What  constitutes  sufficient  notice  of  title  —  Pos- 
session.—  As  has  been  already  stated,  not  only  is  an  unre- 
corded deed  good  against  the  grantor,  his  heirs,  devisees,  and 
subsequent  voluntary  grantees,  but  it  is  also  good  against 
subsequent  purchasers  for  value,  if  they  are  charged  with 
notice  of  the  prior  deed.  In  order  to  bind  a  subsequent 
purchaser  with  notice,  he  must  have  actual  notice  of  the 
deed,  or  knowledge  of  such  facts  which  would  set  a  prudent 
man  upon  his  inquiry,  and  as  a  deduction  from  this  rule, 
the  law  imputes  to  a  purchaser  a  knowledge  of  every  fact 
which  appears  upon  the  muniments  of  title,  or  which  one 
should  inquire  after  in  the  investigation  of  the  title.3     Thus, 

Kessler  v.  State,  24  Ind.  315;  Quirk  v.  Thomas,  6  Mich.  76;  Harrold  v. 
Simonds,  9  Mo.  32G ;  Davis  v.  Ownsby,  14  Mo.  175 ;  McRaven  v.  McGuire,  9 
Smed.  &M.  34 ;  Dubose  v.  Young,  10  Ala.  365;  McCabe  v.  Gray,  20  Cal.  509. 

1  3  Washl .  ©n  Real  Prop.  320,  321. 

2  Walk.  Am.  Law.  358;  McRaven  v.  MeGuire,  9  Smed.  &  M.  39;  Leger  v. 
Doyle,  11  Rich.  L.  109;  Anderson  v.  Dugas,  29  Ga.  440;  Lightner  v.  Mooney, 
1 0  Watts,  407 ;  Souder  v.  Morrow,  33  Pa.  St.  83 ;  Den  v.  Richman,  1  Green  (N.  J  )', 
43;  Mallory  v.  Stodder,  6  Ala.  801 ;  Helms  v.  O'Bannon,  26  Ga.  132;  Bolk  r. 
Massey,  11  Rich.  L.  614;  Northrup  v.  Brehmer,  8  Ohio,  392 ;  Poth  v.  Anstatt, 
4  Watts  &  S.  307. 

3  Mills  v.  Smith.  ?»  Wall,  33;  Jackson  v.  Livingston,  10  Johns.  374;  Mau- 
pin  v.  Emmons,  47  Mo.  306;  Brush?;.  Ware,  15  Pet.  93;  Jumel  v.  Jumel,  7 
Paige,  501  ;  Burch  v.  Carter,  44  Ala.  115;  Fitzhugh  v.  Barnard,  12  Mich.  110; 
Daughaday  ?;.  Paine,  6  Minn.  452;  Reeder  v.  Barr,  4  Ohio,  446;  Mason  i\ 
Payne,  Walk.  Ch.  459-  Baltimore,  etc.,  v.  White,  2  Gill,  444. 

42  657 


§    819  THE    REQUISITES    OF    A   DEED.  [PART    III. 

a  deed  in  the  chain  of  title  discovered  by  the  investigator  is 
constructive  notice  of  all  other  deeds  referred  to  in  the  deed 
which  was  discovered.1  And  the  notice  that  the  grantor  had 
made  a  prior  deed  of  the  same  land  is  sufficient,  although  the 
purchaser  knew  nothing  of  its  contents.2  Notice  to  a  general 
agent  or  trustee  is  notice  to  the  principal  or  cestui  que  trust.3 
It  is  also  generally  held  in  the  United  States  that  possession  of 
the  grantee  under  a  prior  unrecorded  deed  is  constructive 
notice  of  the  title  under  which  he  claims.4  But  in  some  of 
the  States  it  is  held  that  such  possession  is  not  to  be  consid- 
ered conclusive  evidence  of  notice.  The  second  grantee 
may  show  in  rebuttal  that  he  made  a  diligent  but  unsuc- 
cessful inquiry.5  And  in  order  that  possession  may  raise  a 
constructive  notice  of  title,  it  must  be  open,  notorious,  and 
unequivocal.  A  joint  possession  with  the  grantor,  or  one 
which  is  rendered  ambiguous  from  any  other  cause,  will  not 
be  sufficient.6 

1  Aeer  v.  Westcott,  46  N.  Y.  384 ;  Cambridge  Valley  Bank  v.  Delano,  48 
N.  Y.  326  ;  Hamilton  v.  Nutt,  34  Conn.  501 ;  Baker  v.  Matcher,  25  Mich.  53. 

2  Galland  v.  Jackman,  26  Cal.  87. 

3  Myers  v.  Ross,  3  Head,  59. 

*  Lea  v.  Polk  Co.  Copper  Co.,  21  How.  493 ;  Helms  v.  May,  29  Ga.  121 ; 
Watkins  v.  Edwards,  23  Texas,  443 ;  Harper  v.  Perry,  28  Iowa,  62  ;  Russell  v. 
Sweesey,  22  Mich.  239;  Morrisons.  Kelly,  22  111.  610;  Maupin  v.  Emmons,  47 
Mo.  307 ;  Hunter  v.  Watson,  12  Cal.  303 ;  Coleman  v.  Barklew,  3  Dutch.  357 ; 
Watrous  v.  Blair,  32  Iowa,  63 ;  Berg  v.  Shipley,  1  Grant's  Cas.  429 ;  Billing- 
ton  v.  Welsh,  5  Binn.  129 ;  McKinzie  v.  Perrill,  15  Ohio  St.  168 ;  Shumate  v. 
Reavis,  49  Mo.  333 ;  Burt  v.  Cassety,  12  Ala.  134. 

6  Pomroy  v.  Stevens,  11  Mete.  244 ;  Dooley  v.  Wolcott,  4  Allen,  406 ;  Mara 
v.  Pierce,  9  Gray,  306;  Nutting  v.  Herbert,  37  N.  H.  346;  Moore  v.  Jourdan, 
14  La.  An.  414;  Lestrade  v.  Barth,  19  Cal.  676;  Fair  v.  Stevenot,  29  Cal.  490. 

«  Billington  v.  Welsh,  5  Binn.  129;  Colby  v.  Kenniston,  4  N.  H.  262;  Pat- 
ten v.  Moore,  32  N.  H.  384 ;  Truesdale  v.  Ford,  37  111.  210 ;  Fair  v.  Stevenot,  29 
Cal.  490;  Smith  v.  Yale,  31  Cal.  184. 

658 


SECTION  II. 

COMPONENT   PARTS   OF   A   DEED. 

Section  824.  Deeds-poll  and  of  indenture. 

825.  Component  parts  of  a  deed. 

826.  The  premises. 

827.  Description  —  General  statement. 

828.  Contemporanea  Expositio  est  optima  et  fortiasima  in  lege. 

829.  Palso  demonstrate  non  nocet. 

830.  The  Elements  of  description. 

831.  Monuments  —  Natural  and  artificial. 

832.  Artificial  monuments  in  United  States  Survey*. 

833.  Non-navigable  streams. 

834.  Navigable  streams. 

835.  What  is  a  navigable  stream. 

836.  Ponds  and  lakes. 

837.  Highways. 

838.  Walls,  fences,  trees,  etc. 

839.  Courses  and  distances. 

840.  Quantity. 

841.  Reference  to  other  deeds,  maps,  etc.,  for  description. 

842.  Appurtenants. 

843.  Exception  and  reservation. 

844.  Habendum. 

845.  Reddendum. 

846.  Conditions. 

§  824.  Deeds-poll  and  of  indenture. — After  explain- 
ing the  requisites  of  a  deed  to  convey  land,  it  is  necessary 
to  present  the  formal  and  component  parts.  But  before 
proceeding  to  the  discussion  of  them  in  their  regular  order, 
reference  must  be  made  to  the  two  kinds  of  deeds  known 
to  the  law,  and  differing  in  form,  viz. :  deeds  of  indenture, 
and  deeds-poll.  A  deed  of  indenture  is  a  deed  consisting 
of  as  many  parts  as  there  are  parties.  Originally,  these 
parts,  or  copies,  were  written  on  the  same  piece  of  paper 
or  parchment,and  for  the  purpose  of  identifying  the  several 

659 


§  824         COMPONENT  PARTS  OF  A  DEED.    [PART  III. 

parts,  they  were  cut  apart  in  an  irregular  line,  somewhat 
resembling  the  teeth  of  a  saw,  instar  dentium,  some  word 
having  been  written  over  the  proposed  line  of  severance.  It 
is  from  this  quaint  method  of  execution  that  the  name  indent- 
ure is  derived.  But  this  practice  is  rarely,  if  ever,  followed 
now,  and  a  deed  of  indenture  means  simply  a  deed  executed 
by  all  the  parties,  and  consisting  of  as  many  parts  or  copies  as 
there  are  parties.  Formerly,  it  was  customary  for  each  party 
to  execute  only  one  and  a  different  part,  and  the  part  exe- 
cuted by  the  grantor  was  called  the  original,  while  that  which 
was  executed  by  the  grantee  was  called  the  counterpart. 
But  now  it  is  usual  for  both  parties  to  execute  each  part.1 
A  deed-poll  is  designed  simply  to  transfer  the  grantor's  in- 
terest, and  is  executed  by  him  alone.2  Deeds-poll  are  in 
the  first  person,  while  deeds  of  indenture  are  in  the  third 
person.  But  this  is  a  mere  formality,  the  non-observance 
of  which  will  not  invalidate  the  deed  ;  and,  although  the  deed 
is  in  form  one  of  indenture,  it  will  be  good  as  a  deed-poll, 
if  the  grantor  executes  it  alone.3  Indeed,  the  distinction 
is  of  very  little  practical  value.  Although  it  is  said  that  a 
deed  of  indenture  is  a  stronger  deed  for  raising  an  estoppel 
against  the  grantee,4  yet  a  deed-poll  can  and  does  raise  all  the 
estoppels  necessary  for  the  protection  of  the  grantor's  inter- 
ests, and  by  accepting  the  deed-poll  the  grantee  takes  the  es- 
tate so  granted,  subject  to  all  the  conditions,  exceptions, 
reservations,  and  conditions  contained  in  the  deed.  If  the 
deed  is  to  operate  as  a  deed  of  exchange,  or  one  of  partition, 
all  parties  must  join  in  the  execution  of  the  deed,  and  the 
deed  must  be  an  indenture,  since  in  those  cases  each  party 

1    3  Washb.  on  Eeal  Prop.  311 ;  Co.   Lit.  229  a,  Butler's  note,  140;  Dyer  v. 
Sandford,  9  Mete.  395;  Dudley  v.  Sumner,  5  Mass.  488. 

2  3  Washb.  on  Real  Prop.  311 ;  Dyer  v.  Sanford,  9  Mete.  395 ;  Giles*.  Pratt. 
2  Hill  (S.  C.)  439. 

3  3  Washb.  on  Real  Prop.  312;  Hallett  v.  Collins,   10  How.  174;  Hipp  v. 
Hackett,  4  Texas,  20. 

*  3  Washb.  on  Real  Prop.  312 ;  Pinley  ».  Simpson,  2  N.  J.  311. 

660 


CH.  XXII.]  COMPONENT   PARTS   OF   A   DEED.  §    826 

is,  successively,  and  in  respect  to  his  estate  thus  conveyed, 
a  grantor.  There  is  a  technical  difference  between  deeds- 
poll  and  deeds  of  indenture  still  prevailing,  in  respect  to 
the  form  of  action  upon  the  grantee's  covenants.  In  some 
of  the  States,  where  the  common-law  pleading  still  prevails, 
it  is  held  that  the  action  of  the  grantor's  covenant  in  a 
deed-poll  must  be  assumpsit,  since  his  agreement  or  Con- 
tract is  not  one  under  his  seal.  And  no  doubt  this  is  the 
correct  view.1  But  in  the  so-called  code  States,  viz.,  where 
the  common-law  pleading  has  been  supplanted  by  the  New 
York  code  of  procedure,  this  distinction  has  passed  away 
with  the  abolition  of  all  forms  of  actions.2 

§  825.  Component  parts  of  a  deed. — These  parts  have 
been  divided  and  named  by  Lord  Coke  as  follows :  the 
premises,  habendum,  tenendum,  reddendum,  condition,  war- 
ranty, and  covenants.  And  although  it  is  advisable,  ex 
abundante  cautela,  to  follow  the  form  and  order  here  pre- 
scribed, making  use  of  the  technical  and  thoroughly  adjudi- 
cated phraseology,  it  is  not  absolutely  necessary.  If  a  deed 
contains  all  the  requisites  hereinbefore  explained,  it  will  be  a 
good  and  effective  deed,  even  though  the  various  elements 
are  presented  in  the  most  irregular  order,  and  in  the  most 
informal  language.  The  premises  is  the  only  essential  part 
of  a  deed  for  the  conveyance  of  an  estate.3 

§  82G.  The  premises. — The  term  *  premises.,  is  given  to 
all  that  part  of  a  deed  which  precedes  the  habendum  clause, 
and  generally  includes  the  names  of  the  parties,  the  recitals 
which  may  be  necessary  to  an  explanation  of  the  deed  and 

1  Goodw  nv.  Gilbert,  9  Mass.  510;  Nugent  v.  Kiley,  1  Mete.  117;  Newell 
v.  Hill,  2  Mete.  180;  Hinsdale  v.  Humphrey,  15  Conn.  431 ;  Johnson  v.  Massy, 
45  Vt.  410;  Maule  v.  Weaver,  7  Pa.  St.  829. 

2  Atlantic  Dock  Co.  v.  Leavett,  54  N.  Y.  34. 

3  3  Washb.  on  Real  Prop.  365;  Co.  Lit.  6  a,  7  a;  4  Kent's  Com.  461; 
Roe  v.  Tranmarr,  Willes,  682. 

661 


§  827         COMPONENT  PARTS  OF  A  DEED.     [PART  HI. 

its  operation,  the  consideration  and  receipt  of  the  same,  the 
operative  words  of  conveyance,  description  of  the  thing 
granted,  and,  if  it  is  a  deed  of  indenture,  the  date.1  But 
these  may  appear  in  other  parts  of  the  deed,  and  will  be 
equally  effective.  And  it  has  been  held  that  where  the 
premises  do  not  contain  the  name  of  the  grantee,  or  even 
sufficient  operative  words  of  conveyance,  these  may  be  sup- 
plied by  the  habendum."  This  is  but  an  application  of  the 
general  principle,  already  enunciated,  that  a  logical  or  sys- 
tematic arrangement  of  the  parts  is  not  essential.  All  the 
elements  of  the  premises  have  been  already  fully  discussed, 
except  the  matter  of  description  of  land  granted,  and  noth- 
ing further  need  be  said  here  concerning  them.  We  will, 
therefore,  proceed  to  a  discussion  of  the  description. 

§  827.  Description  —  General  statement. — At  first 
blush,  it  would  appear  easy  enough  to  describe  specifically 
and  clearly  what  is  granted,  and  if  extreme  caution  was  ob- 
served in  every  case,  in  framing  the  description,  there  would 
be  little  need  of  rules  of  construction.  For  a  clearly  writ- 
ten description  can  never  be  controlled  by  parol  evidence.3 
But  at  times  so  little  precaution  is  taken,  and  so  many  un- 
certainties and  inconsistencies  creep  in,  that  resort  must  be 
made  to  established  rules  of  construction  in  order  to  ascer- 
tain the  intention  of  the  parties.  And  in  construing  a  deed, 
very  little  attention,  if  any,  is  paid  to  the  punctuation  of 
the  description.4  If  a  description  is  hopelessly  uncertain, 
so  that  the  thing  granted  cannot  be  ascertained  from  the 
deed  with  any  reasonable  degree  of  certaint}',  the  deed  will 

1  3  W:ishb.  on  Real  Prop.  366. 

2  3  WusLb.  on  Real  Prop.  366 ;  post,  sect.  844. 

3  Broom's  Leg.  Max.  477;  Cole  v.  Lake  Co.,  54  N.  H.  278;  Hannura  v. 
West  Chester,  70  Pa.  St.  372. 

1  3  Washb.  on  Real  Prop.  397 ;  Doe  v.  Martin,  4  T.  R.  65 ;  Ewing  v.  Bur- 
nett, 11  Pet.  54. 

662 


CH.  XXII.]  COMPONENT    PARTS    OF    A    DEED.  §    827 

be  void.1  But  if  it  is  possible  to  gather  the  intention  from 
the  description  by  any  reasonable  rules  of  construction,  it 
will  be  enforced.2  And  in  applying  these  rules  of  con- 
struction on  the  assumption,  particularly  in  a  deed-poll, 
that  the  deed  is  in  the  language  of  the  grantor,  and  he  is  in 
fault,  if  uncertainties  or  inconsistencies  arise,  the  deed  is 
construed  most  favorably  to  the  grantee.  But  this  is  only 
done  when  all  other  rules  fail  to  remove  the  doubt.3  An- 
other fundamental  principle  is  that  a  rational  intention 
must  be  sought  after.  The  construction  must  be  reasona- 
ble and  consistent  with  common  sense.4  In  order  to  ascer- 
tain the  intention,  it  is  sometimes  necessary  that  resort 
should  be  had  to  parol  evidence.  But  this  can  only  be  done 
when  there  is  some  uncertainty  arising  outside  of  the  deed. 
Then  parol  evidence  is  admissible  to  explain  the  ambiguities 
arising  in  this  manner  by  showing  the  circumstances  sur- 
rounding the  parties,  explaining  words  of  art,  and  by  proof 
of  any  other  facts  which  will  tend  to  render  certain  the  in- 
tentions of  the  parties.5  But  when  the  deed  contains  every- 
thing necessary  for  a  correct  understanding  of  the  intention 
of  the  parties,  and  there  is,  therefore,  no  uncertainty  or 
ambiguity,  parol  evidence  cannot  control  the  construction.6 

1  Presbrey  v.  Presbrey,  13  Allen  283 ;  Walters  v.  Breden,  70  Pa.  St.  238 ; 
Shackleford  v.  Bailey,  35  111.  391;  Wofford  v.  McKinna,  23  Texas,  45;  3 
Washb.  on  Real  Prop.  381. 

2  Abbott  v.  Abbott,  51  Me.  582 ;  Bond  v.  Fay,  12  Allen,  88 ;  Crafts  v.  Hib- 
bard,  4  Mete.  452. 

3  Worthington  v.  Hylver,  4  Mass.  205 ;  Clougli  v.  Bowman,  15  N.  H.  504 ; 
Sanborn  v.  Clougb,  40  N.  H.  330;  Marshall  v.  Nile?,  8  Conn.  469;  Carroll  v. 
Norwood,  5  Har.  &  J.  155;  Dodge  v.  Walley,  22  Cal.  228;  Vance  v.  Fore,  24 
Cal.»446. 

4  Lyman  v.  Arnold,  5  Mason,  198;  Day  v.  Adams,  42  Vt.  510;  Magoon  v. 
Harris,  46  Vt.  271. 

5  Shore  v.  Wilson,  9  CI.  &  Fin.  556;  Eaton  v.  Smith,  20  Pick.  150;  Put- 
nam v.  Bond,  100  Mass.  58 ;  Hall  v.  Davis,  36  N.  H.  569;  Hildebrand  v.  Fogle, 
20  Ohio,  147;  Stanley  v.  Green,  12  Cal.  162. 

6  Bond  v.  Fay,  12  Allen,  88;  Caldwell  v.  Fulton,  31  Pa.  St.  489;  Morrison 
v.  Wilson,  30  Cal.  347 ;  Lippett  v.  Kelly,  46  Vt.  516. 

663 


§  828         COMPONENT  PARTS  OF  A  DEED.     [PART  III. 

Where  the  deed,  upon  a  reasonable  construction,  conveys 
other  property,  or  imposes  other  restrictions  or  conditions 
than  were  intended  by  the  parties,  the  courts,  more  particu- 
larly those  of  equity,  are  authorized,  either  by  statute  or 
under  the  general  equitable  jurisdiction,  to  reform  it,  so  as 
to  conform  to  the  intention  of  the  parties.1  But  the  re- 
formation must  be  necessary  to  effectuate  the  intention  of 
the  parties.  It  will  not  be  ordered  where  the  uncertainty 
may  be  removed  by  the  application  of  well-known  rules  of 
construction.2  Nor  will  a  deed  be  reformed  because  the 
parties  have  mistaken  the  legal  operation  of  the  deed.3  But 
reformation  of  instruments  is  a  branch  of  equity  jurispru- 
dence, and  does  properly  belong  to  a  work  on  Real  Property. 
Suffice  it  to  say  that,  until  it  is  reformed,  an  absolutely 
defective  deed  conveys  nothing. 

§  828.  Contemporanea  expositio  est  optima  et  fortis- 
sima  in  lege. — In  construing  deeds,  courts  endeavor  to 
place  themselves  in  the  position  of  the  parties  at  the  time 
of  the  conveyance,  in  order  to  ascertain  what  is  intended  to 
be  conveyed.  For,  in  describing  the  property,  parties  are 
presumed  to  refer  to  its  condition  at  that  time,  and  the 
meaning  of  their  terms  of  expression  can  only  be  properly 
understood  by  a  knowledge  of  their  position  and  that  of  the 
property  conveyed.4  Thus,  where  the  channel  of  a  stream > 
running  through  a  tract  of  land,  was  changed  by  the  pro- 

1  Metcalf  v.  Putnam,  9  Allen,  97;  Canedy  v.  Marcy,  14  Gray,  373;  Stock- 
bridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  317;  Adams  v.  Stevens,  49 
Me.  362;  Prescott  v.  Hawkins,  16  N.  H.  122;  Brown  v.  Lamphear,  35  Vt.  260; 
Cramer  v.  Burton,  GO  Barb.  225;  Andrews  v.  Gillespie,  47  N.  Y.  487;  Gray 
v.  Hornb^ck,  31  Mo.  400. 

2  White  v.  White,  L.  R.  15  Eq.  247;  Andrews  v.  Spurr,  8  Allen,  416; 
Caldwell  v.  Fulton,  31  Pa.  St.  484;  Clement  v.  Youngman,  40  Pa.  St.  344; 
Keene's  Appeal,  64  Pa.  St.  274;  Mills  v.  Loekwood,  42  111.  111. 

3  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  317 ;  Glass  i>.  Hul- 
burt,  102  Mass.  44 ;  Canedy  v.  Marcy,  13  Gray,  373 ;  Hutchings  v.  Huggins, 
59  111.  32. 

*  Dunklee  v.  Wilton  R.  R.,  24  N.  H.  489;  Richardson  v.  Palmer,  38  N.  H. 
218;  Connery  v.  Brooke,  73  Pa.  St.  84;  Adams  v.  Frothingham,  3  Mass.  352; 
664 


CH.  XXII.]  COMPONENT   PARTS    OF    A   DEED.  §    829 

prietor,  and  he  subsequently  sold  it  in  parcels  to  different 
persons,  so  that  the  new  channel  was  completely  within  the 
boundaries  of  one  parcel,  the  grantee  of  this  parcel  could 
not,  by  restoring  the  stream  to  its  old  channel,  inundate  the 
other  parcels.1  So,  also,  if  the  grant  was  made  of  a  farm, 
describing  the  same,  but  not  particularizing  what  parcels 
were  included  under  the  general  description,  all  parcels  will 
pass  by  the  deed  which  were  at  the  time  of  the  conveyance 
used  and  occupied  together.2  And  where,  at  the  time  of 
the  conveyance,  the  grantor  had,  in  addition  to  some  lands, 
a  right  of  entry  upon  the  breach  of  a  condition,  and  the 
breach  had  not  yet  occurred,  the  land  acquired  by  a  subse- 
quent exercise  of  the  right  of  entry  was  held  not  to  pass 
under  a  mortgage  of  all  his  rights  and  interests  in  lands 
inC.3 

§  829.  Falsa  demonstratio  non  nocet. — It  is  a  general 
rule  of  construction  that  the  deed  should  be  so  con- 
strued, that  the  whole  deed  shall  stand  and  be 
enforced.4  If  this  is  impossible,  and  the  description  con- 
tains several  elements  or  descriptions,  all  of  which  are 
necessary  to  the  identification  of  the  property  intended  to 
be  conveyed,  the  deed  will  be  void  if  no  property  of  the 
grantor  can  be  found  which  will  correspond  with  every  part 
of  the  description.5  But  if  the  intention,  as  gathered  from 
the  deed,  does  not  make  it  necessary  to  satisfy  all  the  ele- 
ments of  the  description,  or  if  parts  of  the  description  are 
inconsistent  with  other  parts,  and  enough  of  them  are  con- 
Commonwealth  v.  Roxberry,  9  Gray,  493;  Rider  V.Thompson,  23  Me.  244; 
Abbott  v.  Abbott,  51  Me.  581 ;  Lane  v.  Thompson,  43  N.  H.  324;  Pollard  v. 
Maddox,  28  Ala.  325;  Karmuller  v.  Kratz,  18  Iowa,  356;  Stanley  v.  Greene,, 
12  Cal.  148. 

1  3  Washb.  on  Real  Prop.  384  ;  Roberts  v.  Roberts,  55  N.  Y.  275. 

2  Bell  v.  Woodward,  46  N.  H.  337. 

3  Richardson  v.  Cambridge,  2  Allen,  118. 
*  Walters  v.  Breden,  70  Pa.  St.  238. 

5  3  Washb.  on  Real  Prop.  400 ;  Brown  v.  Saltonstall,  3  Me.  423 ;  Warren. 
v.  Coggswell,  10  Grav,  76. 

665 


§    829  COMPONENT   PARTS    OF    A   DEED.  [PART   III. 

sistent  to  identify  the  property  intended  by  the  parties  to 
pass,  whatever  is  repugnant  is  rejected,  and  the  deed  is  en- 
forced under  this  construction.1  Where  two  inconsistent 
parts  of  the  description  are  equally  balanced,  it  has  been 
held  that  the  grantee  may  choose  that  which  is  most  favor- 
able to  him.2  The  first  part  of  the  description  will  prevail 
over  the  last,  provided  both  appear  in  the  granting  portion 
of  the  deed;  and  if  one  part  is  written  and  the  other  is 
printed,  the  written  part  will  prevail.3  If,  therefore,  a  deed 
defines  with  reasonable  certainty  what  is  intended  to  be  con- 
veyed, the  fact  that  a  portion  of  the  description  is  not 
satisfied  by  the  specific  property  will  not  invalidate  the  con- 
veyance.4 But  if  there  are  lands  in  the  possession  of  the 
grantor  which  comply  with  all  the  particulars  of  the  descrip- 
tion, then  only  such  lands  will  pass  by  the  deed,  although 
it  might  appear  from  evidence  that  other  parcels  are  intended 
to  pass  also.5  In  determining  what  is  the  falsa  demonstra- 
tion which  may  be  rejected  without  invalidating  the  deed, 
it  must  be  remembered  that  a  particular  or  special  descrip- 
tion will  always  control  a  general  or  implied  description,  in 
whatever  order  they  may  come.6 

1  Corbin  v.  Healy,  20  Pick.  514;  Bond  v.  Fay,  8  Allen,  212;  Presbrey  v. 
Presbrey,  13  Allen,  283;  Doane  v.  Wilcutt,  16  Gray,  371 ;  Abbott  v.  Abbott, 
63  Me.  3G0;  Scofield  v.  Lockwood,  35  Conn.  428;  Law  v.  Hempstead,  10 
Conn.  23 ;  Peck  v.  Mallams,  10  N.  Y.  532 ;  Bass  v.  Mitchell,  22  Texas,  285. 

2  Esty  v.  Baker,  50  Me.  331 ;  Melvin  v.  Proprietors,  etc.,  8  Mete.  27. 

3  "Webb  v.  Webb,  29  Ala.  606 ;  MeXear  v.  MoComber,  18  Iowa.  17. 

*  Parker  v.  Kane,  22  How.  1 ;  Crosby  v.  Bradbury,  20  Me.  61 ;  Parks  v. 
Loomis,  6  Gray,  467 ;  Presbrey  v.  Presbrey,  13  Allen,  283 ;  Jackson  v.  Clark, 
7  Johns.  223;  Lush  v.  Druse,  4  Wend.  313;  Morrow  v.  Willard,  30  Vt.  118; 
Spillerr.  Scribner,  36  Vt.  246;  Johnson  v.  Simpson,  36  N.  H.  91  ;  Bosworth 
v.  Sturtevant,  2  Cush.  392 ;  Hathaway  v.  Juneau,  15  Wis.  264 ;  Fancher  v. 
De  Montegre,  1  Head,  40 ;  Dodge  v.  Walley,  22  Cal.  224. 

5  Brown  v.  Saltonstall,  3  Me.  423 ;  Morrell  v.  Fisher,  4  Exch.  591 ;  Warren 
v.  Coggswell,  10  Gray,  76;  Griffithes  v.  Penson,  1  H.  &  Colt.  862;  Llewellyn 
v.  Jersey,  11  Mees.  &  W.  183. 

«  Smith  v.  Strong,  14  Pick.  128;  Whiting  v.  Dewey,  *5  Pick.  428;  Winn 
v.  Cabot,  18  Pick.  553;  Dana  v.  Middlesex  Bank,  10  Mete.  250;  Howell  v. 
Saule,  5  Mason,  410 ;  Barney  v.  Miller,  18  Iowa,  466. 

66(1 


OH.  XXII.]  COMPONENT    PARTS    OF   A   DEED.  §    831 

§  830.  The  elements  of  description.  — A  full  and  com-- 
plete  description  gives  monuments,  courses,  and  distances, 
and  the  quantity  of  land  conveyed.  The  relative  value  of 
them,  in  determining  the  boundaries,  is  in  the  order  given. 
Monuments  control  the  courses  and  distances,  and  both  con- 
trol the  quantity  of  land.1  The  reason  for  this  order  of 
preference  lies  in  the  rule  of  construction,  that  where  there 
is  an  inconsistency  in  the  description,  that  element  of  de- 
scription will  be  followed  as  to  which  there  is  the  least  like- 
lihood of  a  mistake.2  And,  generally,  the  description 
contains  data  for  the  location  of  all  four  sides  of  the  tract 
of  land.  But  where  three  are  given,  and  there  is  sufficient 
description  as  to  their  courses  and  distances  to  establish  the 
fourth  by  reasonable  intendment,  the  deed  will  not  be  void.3 

§831.  Monuments  —  Natural  and  artificial. — There 
are  two  kinds  of  monuments,  natural,  or  those  objects  which 
are  permanent,  and  are  found  upon  the  land ;  and  artificial, 
•or  those  which  are  placed  there  for  the  very  purpose  of 
pointing  out  the  boundary.  Among  the  natural  objects 
which  may  serve  as  monuments  may  be  mentioned  trees, 
streams,  ponds,  or  lakes,  shores  and  highways  ;4  and  where 
reference  is  made  in  a  deed  to  artificial  monuments  which 

1  Brown  v.  Huger,  21  How.  305;  Powell  v.  Clark,  5  Mass.  355;  Llewellyn 
v.  Jersey,  11  Mees.  &  W.  183;  Hall  v.  Davis,  36  N.H.  569;  Jackson  v.  Defen- 
-dorf,  1  Caines,  493;  Mann  v.  Pearson,  2  Johns.  37;  Drew  v.  Swift,  46  N.  Y. 
207;  Hall  v.  Mayhew,  15  Md.  551 ;  Snow  v.  Chapman,  1  Root,  528;  Murphy  v. 
Campbell,  4  Pa.  St.  485;  Ufford  v.  Wilkins,  33  Iowa,  113;  Mackentile  v.  Sa- 
voy, 17  Serg.  &R.  164 ;  Dalton  v.  Rust,  22  Texas,  133  ;  Wright  v.  Wright,  34  Ala. 
194;  Commissioners  o.  Thompson,  4  McCord,  434;  Miller  v.  Cherry,  3  Jones 
Eq.  29 ;  Miller  v.  Bentley,  5  Sneed,  671 ;  Stanley  v.  Green,  12  Cal.  148 ;  Colton 
«.  Seavey,  22  Cal.  496;  Coburn  v.  Coxeter,  61  N.  H.  158. 

2  Miller  v.  Cherry,  3  Jones  Eq.  29;  Melvin?;.  Proprietors,  etc.,  5  Mete.  28; 
Esty  v.  Baker,  50  Me.  311 ;  Ferris  v.  Coover,  10  Cal.  628. 

3  Commonwealth  v.  Roxbury,  9  Gray,  490. 

*  Flagg*.  Thurston,  18  Pick.  150;  Bloch  v.  Pfaff,  101  Mass.  538;  Bates  v. 
Tymanson,  13  Wend.  300;  Carroll  v.  Norwood,  5  Har.  &  J.  163;  Smith  v. 
Murphv,  1  Tayl.  303. 

667 


§  831         COMPONENT  PARTS  OF  A  DEED.     [PART  III. 

do  not  then  exist,  they  may  be  located  subsequently  by  the 
parties.  They  will  then  control  the^  courses  and  distances,, 
although  it  may  be  possible  to  show  by  parol  evidence  that 
the  artificial  monuments  as  erected  do  not  show  the  true 
line.1  Parol  evidence  is  not  admissible  to  control  the 
boundaries  in  a  deed.2  But  if  the  monuments  are  lost,  or 
have  been  moved,  or  there  is  doubt  as  to  which  of  two 
objects  was  intended  to  be  the  monument,  parol  evidence 
is  admissible  to  determine  the  monument  or  its  location.8 
And  the  question,  where  the  boundaries  are  and  what  is  the 
location  of  the  monuments,  is  one  of  fact  for  the  jury.4 
Natural  monuments  are  higher  in  value  than  artificial  ones, 
and  are  always  given  the  preference  in  the  case  of  an  incon- 
sistency in  the  description  arising  from  a  reference  to  both." 
Where  a  line  is  described  as  running  from  one  monument  to 
another,  it  is  always  a  straight  line  between  those  two 
points.  And  if  three  monuments  are  referred  to  as  points 
on  the  boundary,  the  line  must  be  straight  from  one  rnonu- 

1  Kennebec  Purchase  v.  Tiffany,  1  Me.  210;  Knowles  v.  Tooth  acker,  58 
Me.  175;  Corning  v.  Troy  Co.,  40  N.  Y.  208;  Makepeace  v.  Bancroft,  12 
Mass.  469;  Waterman  v.  Johnson,  13  Pick.  261  ;  Cleveland  v.  Flagg,  4  Cush. 
81 ;  Blaney  v.  Rice,  20  Pick.  62;  Hathaway  v.  Evans,  108  Mass.  270;  Lerned 
v.  Morrill,  2  N.  H.  197;  Rockwell  v.  Baldwin,  53  111.  22;  Purinton  v.  N.  HL 
R.  R.,  46  111.  300;  Smith  v.  Hamilton,  20  Mich.  433. 

2  Parker  v.  Kane,  22  How.  1;  Dean  v.  Erskine,  18  N.  H.  83;  Child  v. 
Wells,  13  Pick.  121;  Frost  v.  Spaulding,  19  Pick.  445;  Dodge  v.  Nichols,  5- 
Allen,  548;  Pride  v.  Lunt,  19  Me.  116;  Spiller  v.  Scribner,  36  Vt.  247;  Clark 
v.  Baird,  9  N.  Y.  183;  Terry  v.  Chandler,  16  N.  Y.  358;  Drew  v.  Swift,  46  N. 
Y.  209 ;  McCoy  v.  Galloway,  3  Ohio,  283. 

3  Stone  v.  Clark,  1  Mete.  378;  Waterman  v.  Johnson,  13  Pick.  267;  Frost 
v.  Spaulding,  19  Pick.  445;  Claremont  v.  Carlton,  2  N.  H.  369;  Gratz  v. 
Beates,  45  Pa.  St.  504 ;  Middleton  v.  Perry,  2  Bay,  539 ;  Ferris  v.  Coover,  10 
Cal.  624 ;  Colton  v.  Seavey,  22  Cal.  496. 

*  Abbott  v.  Abbott,  51  Me.  581 ;  Opdvke  v.  Stephens,  28  N.  J.  L.  90. 

s  Bolton  v.  Lann,  16  Texas,  96;  Ogdenr.  Porterfield,  34  Pa.  St.  196;  Fal- 
wood  v.  Graham,  1  Rich.  497 ;  Beahan  v.  Stapleton,  13  Gray,  427 ;  Ferris  v. 
Coover,  10  Cal.  624;  Brown  v.  Hu^er,  21  How.  305;  Mclver  v.  Walker,  4 
Wheat.  444;  Newsom  v.  Pryor,  7  Wheat.  7;  Shelton  v.  Maupin,  16  Mo.  124; 
Duren  v.  Presberry,  25  Texas,  512. 

668 


CH.  XXII.]  COMPONENT   PARTS   OF   A   DEED.  §    832 

ment  to  another  successively.1  Furthermore,  if  a  line  is  de- 
scribed as  running  from  a  given  point  to  a  natural  object, 
like  a  highway  or  stream,  unless  the  course  or  length  of  the 
line  is  given,  it  must  be  the  shortest  line  drawn  from  the 
point  to  the  object,  and  must,  therefore,  be  at  right  angles 
with  the  stream  or  highway.2  Where  the  line  is  described 
as  running  "  between  "  two  objects,  the  objects,  as  well  as 
the  land  lying  between  them,  are  included  in  the  grant.  So, 
also,  when  the  description  is  "  from  "  one  object  "  to  "  an- 
other.3 

§  832.  Artificial  monuments  in  the  United  States'  sur- 
veys. —  The  public  lands  of  the  Western  Territories,  which 
became  the  property  of  the  United  States  government  upon 
the  formation  of  the  present  Union,  were  by  acts  of  Con- 
gress surveyed  and  divided  up  into  townships,  sections,  and 
subdivisions  of  sections,  as  has  been  already  explained.4 
When  afterwards  these  lands  were  sold  to  private  individuals, 
they  were  always  described  by  referring  to  the  number  of 
the  township,  section,  and  subdivision  of  the  section.  The 
boundaries  of  these  sections  and  of  the  quarter  and  half 
sections  were  marked  for  the  most  part  by  artificial  monu- 
ments, which  constituted  the  corners  of  these  tracts  of  land. 
If,  therefore,  the  deed  calls  for  a  certain  quarter  section  of 
a  certain  section  in  a  certain  township,  a  reference  to  the 
maps  and  field  notes  of  the  survey  will  determine  the  loca- 

1  Allen  v.  Kingsbury,  16  Pick.  235;  Jenks  v.  Morgan,  6  Gray,  448;  Hovey 
v.  Sawyer,  5  Allen,  585 ;  Nelson  v.  Hall,  1  McLean,  519 ;  Caraway  v.  Chancy, 
6. Jones  L.  364;  Baker  v.  Talbott,  6  B.  Mon.  179;  McCoy  v.  Galloway,  3  Ohio, 
382. 

2  Van  Gorden  v.  Jackson,  5  Johns.  474;  Bradley  v.  Wilson,  58  Me.  360; 
Craig  ^.Hawkins,  1  Bibb,  64;  Hicks  v.  Coleman,  25  Cal.  142;  Caraway  v. 
Chancy,  6  Jones  L.  364. 

3  Bonney  v.  Morrill,  52  Me.  256 ;  Revere  v.  Leonard,  1  Mass.  91 ;  Hatch  v. 
Dwight,  17  Mass.  289;  Carbrey  v.  Willis,  7  Allen  370;  Millett  v.  Fowle,  8 
Cush.  150;  Wells  v.  Jackson  Iron  Co.,  48  N.  H.  491. 

4  See  ante,  sect.  744. 

669 


§    832  COMPONENT    PARTS    OF   A   DEED.  [PART    III* 

tion  of  the  land,  for  maps  and  surveys  are  generally  proper 
evidence  for  the  establishment  of  boundaries,1  and  the  United 
States  Statutes  make  the  field  notes  and  plats  of  the  original 
surveyor  the  primary  and  controlling  evidence  of  boundary.-2 
These  field  notes  and  the  plats  call  for  artificial  monuments 
to  designate  the  corners  of  the  tract,  and  when  they  are 
found,  since  artificial  monuments  control  distances  and 
courses  in  government  surveys  as  well  as  in  ordinary  cases,3, 
no  difficulty  will  be  experienced  in  ascertaining  the  bounda- 
ries, except  in  two  cases:  First,  if  the  deed  calls  for  natural 
monuments,  and  the  land  is  described  in  part  by  a  reference 
to  them  ;  and  secondly,  where  the  description  consists  in  a 
reference  to  the  township  and  section,  and  it  is  ascertained 
that  one  or  more  of  the  corners  have  been  lost.  In  the  first 
case,  the  general  rule  that  natural  monuments  control  in  the 
matter  of  boundary  both  the  artificial  monuments  and  the 
courses  and  distances,  applies  here  in  its  full  force,  although 
the  plats  and  field  notes  would  indicate  a  different  location.4 
The  second  case  presents  a  greater  difficulty.  It  is  a  gen- 
eral rule  of  construction  that  where  the  natural  and  artificial 
monuments  cannot  be  ascertained  by  any  proper  evidence, 
the  courses  and  distances  must  govern  the  location  of  the 

1  Haring  v.  Van  Houten,  22  N.  J.  L.  61 ;  Alexander  v.  Lively,  5  B.  Mon. 
159;  Bruce  v.  Taylor,  2  J.  J.  Marsh.  160;  Steele  v.  Taylor,  3  A.  K.  Marsh.  226; 
Madison  City  v.  Hildreth,  2  Ind.  274 ;  Tate  v.  Gray,  1  Swan,  73 ;  Carmichael 
v.  Trustees,  4  Miss.  84;  McClintock  v.  Rogers,  11  111.  279. 

*  U.  S.  Rev.  Stat.,  sect.  2396.  "The  boundary  lines  actually  run  and 
marked  in  the  surveys  returned  by  the  Surveyor-General  shall  be  established 
as  the  proper  boundary  lines  of  the  sections  or  subdivisions  for  which  they 
were  intended."  Bruce  v.  Taylor,  2  J.  J.  Marsh.  160;  Steele  v.  Taylor,  3  A. 
K.  Marsh.  226;  McClintock  v.  Kogers,  11  111.  279. 

a  Robinson  v.  Moore,  4  McLean,  279;  Esmond  v.  Tarbox,  7  Me.  61 ;  Hall  p. 
Davis,  36  N.  H.  569;  Hunt  v.  McHenry,  Wright.  599;  Bayless  v.  Rupert* 
Wright,  634;  Bruckner  v.  Lawrence,  1  Dougl.  (Mich.)  19;  Clirner  v.  Wallace* 
28  Mo.  556. 

*  Brown  v.  Hager,  21  How.  305 ;  Mclver  v.  Walker,  4  Wheat.  444 ;  New- 
som  v.  Pryor,  7  Wheat.  7;  Shelton  v.  Maupin,  16  Mo.  124;  Duren  v.  Pres- 
berry,  25  Texas,  512. 

670 


CH.  XXII.]  COMPONENT    PARTS    OF   A   DEED.  §    832 

boundary,  and  this  is  also  the  rule  in  respect  to  the  lost 
corners  in  the  government  surveys.1  But  before  the  courses 
and  distances  can  determine  the  boundary,  all  means  for 
ascertaining  the  location  of  the  lost  monuments  must  first  be 
exhausted.  Parol  evidence  is  admissible  to  establish  the 
location  of  monuments,  and  even  hearsay  evidence  and  evi- 
dence of  general  reputation  are  admissible  in  such  cases .- 
But  in  the  case  of  government  or  public  lands,  as  a  general 
rule,  the  courts  and  the  parties  rely  chiefly  upon  the  surveys 
and  plats  returned  by  the  Surveyor-General  for  the  evidence 
of  boundary,  and,  where  the  corners  are  lost  and  cannot  be 
established  by  parol  evidence,  the  surveys  and  plats  only 
give  the  courses  and  distances.  If  the  surveys  were  accu- 
rate, and  the  courses  and  distances  given  in  the  field  notes 
corresponded  exactly  with  the  actual  location  of  the  corners, 
a  resort  to  these  courses  and  distances  would  do  complete- 
justice  to  all  the  parties  interested  in  the  ascertainment  of 
the  boundary.  But,  as  a  matter  of  fact,  the  chains  used  in 
making  the  measurements  were  stretched  by  constant  use, 
so  that  they  were  in  most  cases  much  longer  than  the  stand- 
ard chain,  thus  making  the  courses  and  distances  call  for 
less  land  than  was  actually  included  within  the  established 
corners.  The  Supreme  Court  of  Missouri,  relying  upon  the 
rule  that  courses  and  distances  control  the  boundary  when 
the  monuments  are  lost,  has  held  that  where  a  corner  is  lost 
the  surveyor  must  measure  from  the  known  corner  on  the 
eastern  line  of  the  township  or  section  the  distance  called 
for  by  the  plat  and  field  notes,  and  the  corner  must  be  es- 
tablished at  that  distance,  the  surplus  of  land  being  given 

»  Heaton  v.  Hodges,  14  Me.  66;  Budd  u.  Brooke,  3  Gill,  198;  Bruckner?;. 
Lawrence,  1  Dougl.  (Mich.)  19;  Calvert  v.  Fitzgerald,  6  Litt.  391. 

2  Boardman  v.  Reed,  6  Pet.  341 ;  Jackson  v.  McCall,  10  Johns.  377  ;  Lay  v- 
Neville,  25  Cal.  545;  Smithw.  Shackleford,  9  Dana,  452;  McCoy  v.  Gallowav, 
3  Ohio,  283;  Nixon  v.  Porter,  34  Miss.  697;  Smith  v.  Prewitt,  2  A.  K.  Marsh. 
158;  Morton  v.  Folger,  15  Cal.  275;  Stroud  v.  Springfield,  28  Texas,  649  r, 
Yates  v.  Shaw,  24  111.  367. 

671 


§    833  COMPONENT   PARTS   OF   A   DEED.  [PART   HI. 

to  the  western  section  or  quarter  section.1  This  is  contrary 
to  the  provisions  of  the  United  States  Statutes,  which  must 
govern  in  all  disputes  as  to  the  boundaries  of  government 
lands.  It  is  provided  by  statute  that ' '  all  the  corners  marked 
in  the  surveys,  returned  by  the  Surveyor-General,  shall  be 
established  as  the  proper  corners  of  sections  or  subdivisions 
of  sections,  which  they  were  intended  to  designate  ;  and  the 
corners  of  half  and  quarter  sections  not  marked  on  the  sur- 
veys shall  be  placed  as  nearly  as  possible  equidistant  from 
two  corners  which  stand  on  the  same  line."  This  statutory 
provision  clearly  makes  the  field  notes  the  proper  and  the 
best  means  of  ascertaining  lost  corners,  and  the  interpreta- 
tion of  the  field  notes  must  be  governed  largely,  if 
not  exclusively,  by  the  principles  of  civil  engineering. 
The  object  being  to  ascertain  the  exact  location  of  a  lost 
corner,  it  is  necessary,  and  the  United  States  Statutes  re- 
quire it,  that  the  errors  in  the  measurements  should  be  noted. 
If,  therefore,  the  courses  and  distances  fall  below  the  actual 
amount  of  land  included  in  the  two  contiguous  sections  or 
subdivisions  of  sections,  between  which  the  boundary  is  to 
be  ascertained,  the  surplus  of  land  should  be  divided  be- 
tween the  two  tracts  of  land  in  proportion  to  the  respective 
lengths  of  their  lines  in  the  plats.2 

§  833.  Non-navigable  streams.  —  Generally,  where  land 
is  bounded  by  a  stream  which  is  not  navigable,  the  boundary 
line  is  the  centre  line  of  the  stream,  the  filum  aqua;;  and 
the  line  changes  its  course  with  the  natural  and  gradual 

1  Knight  v.  Elliott,  57  Mo.  322 ;  Vaughn  v.  Tate,  64  Mo.  491 ;  Major  v.  Wat- 
son, 73  Mo.  6(i5.  And  this  seems  also  to  be  the  position  of  the  court  of  Vir- 
ginia upon  a  parallel  case.     Overton  v.  Devisson,  1  Gratt.  211. 

2  This  rule  is  recognized  and  adopted  in  Jones  v.  Kimble,  19  Wis.  429,  and 
constitutes  one  of  the  printed  instructions  to  the  United  States  deputy  and 
count}-  surveyors;  and  these  instructions  are  by  statute  made  a  part  of  every 
■contract  fur  surveying  land.     Sect.  2399,  U.  S.  Rev.  Stat. 

672 


€H.  XXII.]  COMPONENT   PARTS   OF   A   DEED.  §    833 

change  in  the  current.1  But  it  does  not  always  follow  that 
the  thread  of  the  stream  will  be  the  boundary  line,  because 
the  stream  is  referred  to  in  the  deed.  If  the  stream  is 
mentioned  as  the  boundary  in  general  terms,  or  the  land  is 
described  as  "  bounding  on  "  or  "  running  along  "  a  river, 
the  stream  will  be  held  to  be  the  monument  and  the  thread 
of  the  stream  is  the  boundary  line.  And  this  is  true,  al- 
though the  deed  describes  the  line  on  the  stream  as  extend- 
ing from  one  object  to  another,  both  of  which  are  on  the 
shore;  as,  for  example,  "  bounding  on  "  the  stream  and 
"  extending  from  "  one  tree  on  the  bank  to  another.  The 
termini  of  the  boundary  line  are  ascertained  by  drawing 
lines  at  right  angles  with  the  shore  from  these  objects  to 
the  centre  of  the  stream.2  But  if  the  land  is  described  as 
bounding  on  the  bank  or  shore  of  the  stream,  then  the  low- 
water  mark  on  the  banks  will  be  the  boundary.  The  par- 
ticular reference  to  the  bank  excludes  the  stream.3  Where 
the  stream  or  its  bank  is  the  boundary  line,  it  follows  its 
meanderings  so  that  if  the  distance  is  given  it  is  ascertained 
by  reducing  the  irregular  lines  of  the  shore  to  a  straight 
line.4 

1  Morrison  v.  Keen,  3  Me.  474;  Hatch  v.  Dwight,  17  Mass.  289;  People  v. 
Canal  Appraisers,  13  Wend.  355 ;  Commissioners  v.  Kempshall,  26  Wend. 
404;  People  v.  Piatt,  17  Johns.  195;  Morgan  v.  Reading,  3  Smed.  &  M.  366; 
Browne  v.  Kenned}',  5  Har.  &  J.  195;  Hayes  v.  Bowman,  1  Rand.  417;  Lynch 
v.  Allen,  4  Dev.  &  B.  62 ;  State  v.  Gilmanton,  9  N.  H.  461 ;  Arnold  v.  Elmore, 
16  Wis.  514 ;  Love  v.  White,  20  Wis.  432. 

*  Lunt  v.  Holland,  14  Mass.  150 ;  Commonwealth  v.  Alger,  7  Cush.  97 ;  Cold 
Springs  Iron  Works  v.  Tolland,  9  Cush.  492 ;  Newhall  v.  Ireson,  13  Gray, 
262;  Railroad  v.  Schurmeier,  7  Wall,  286;  Luce  v.  Carley,  24  Wend.  451 ; 
Varick  v.  Smith,  9  Paige  Ch.  547 ;  Brown  v.  Chadbourne,  31  Me.  9 ;  Robinson 
v.  White,  42  Me.  218 ;  Newton  v.  Eddy,  23  Vt.  319 ;  Cox  v.  Freedley,  33  Pa. 
St.  129;  McCulloch  v.  Aten,  2  Ohio,  425. 

3  Bradford  v.  Cressey,  45  Me.  9;  Child  v.  Starr,  4  Hill  369;  Halsey  v.  Mc- 
Cormick,  13  N.  Y.  296;  Babcock  v.  Utter,  1  Abb.  Pr.  27 ;  Dunlap  v.  Stetson, 
4  Mason,  349;  Daniels  v.  Cheshire  R.  R.,  20  N.  H.  85;  Martin  v.  Nance,  3 
Head,  650;  Watson  v.  Peters,  26  Mich.  516. 

*  Calk  v.  Stribling,  1  Bibb,  122;  Hicks  v.  Coleman,  25  Cal.  142;  People  v. 
Henderson,  40  Cal.  32. 

43  673 


§  834         COMPONENT  PARTS  OF  A  DEED.     [PART  III. 

§  834.  Navigable  streams. — Where  land  is  bounded  by 
a  navigable  stream,  strictly  so-called,  i.e.,  where  the  tide 
ebbs  and  flows,  the  boundary  line  is  the  high-water  mark 
on  the  shore.1  But  in  the  States  where  the  large  rivers  of 
this  country  are  held  to  be  navigable,  although  having  no 
tide-water,  the  boundary  line  is  held  on  those  rivers  to  be 
at  low-water  mark.'2  But  in  both  cases  the  riparian  owner 
has,  as  appurtenant  to  his  ownership,  the  right  to  erect  and 
maintain  wharfs  or  piers,  subject  to  the  governmental  con- 
trol necessary  for  the  protection  of  the  public.3  The  same 
rule  applies  to  land  bounded  by  the  sea  or  by  the  arms  of 
the  sea.  The  boundary  line  is  the  high-water  mark,  and 
what  is  called  the  shore  or  beach  is  the  property  of  the 
State.4  In  Massachusetts,  by  statute,  the  common  law  has 
been  changed,  and  now  riparian  owners  on  navigable  rivers 
and  arms  of  the  sea  own  up  to  the  low-water  mark.5  In 
determining  the  exact  location  of  either  the  low  or  high- 
water  mark,  reference  is  always  had  to  the  ordinary  or 
medium  rise  and  fall  of  the  water.6 

1  Canal  Comm'rs  v.  The  People,  5  Wend.  423 ;  Wheeler  v.  Spinola,  54  N. 
Y.  377;  East  Haven  v.  Hemingway,  7  Conn.  186;  Niles  v.  Patch,  13  Gray, 
254 ;  Stewart  v.  Fitch,  30  N.  J.  L.  20 ;  Middleton  v.  Pritchard,  4  HI.  520. 

2  Stover  v.  Jack,  60  Pa.  St.  339 ;  Wood  v.  Appal,  63  Pa.  St.  221 ;  Wain- 
wright  v.  McCullough,  63  Pa.  St.  66 ;  Ryan  v.  Brown,  18  Mich.  196 ;  Martin  v. 
Evansville,  32  Ind.  85 ;  Ensminger  v.  People,  47  111.  384 ;  People  v.  Canal 
Comm'rs,  33  N.  Y.  461 ;  Edder  v.  Burrus,  6  Humph.  367 ;  Martin  v.  Nance,  & 
Head,  650. 

3  Ensminger  v.  Davis,  47  HI.  384 ;  Ryan  v.  Brown,  18  Mich.  196 ;  Yates  v. 
Milwaukee,  10  Wall.  497 ;  Weber  v.  Harbor  Comm'rs,  18  Wall.  64.  For  a 
discussion  of  what  is  a  navigable  stream,  and  for  the  distinction  between  pub- 
lic, navigable  and  non-navigable  stream,  see  post,  sect  835. 

4  Storer  v.  Freeman,  6  Mass.  435 ;  Commonwealth  v.  Roxbury,  9  Gray,  492 ; 
Niles  v.  Patch,  13  Gray,  254;  Pollard  v.  Hogan,  3  How.  230;  Goodtitle  v. 
Kibbe,  9  How.  477 ;  Hodge  v.  Boothby,  48  Me.  71 ;  Cortelyou  v.  Van  Brundt, 
2  Johns.  362 ;  Ledyard  v.  Ten  Eyck,  36  Barb.  125 ;  Mather  v.  Chapman,  40 
Conn.  382;  Danau.  Jackson  St.  Wharf,  31  Cal.  120. 

5  Boston  v.  Richardson,  105  Mass.  353 ;  Paine  v.  Woods,  108  Mass.  168 ;  Val- 
entine v.  Piper,  22  Pick.  94. 

6  Stover  v.  Jack,  60  Pa.  St.  339;  Tinnicum  Fishing  Co.  v.  Carter,  61  Pa. 
St.  21 ;  Wood  v.  Appal,  63  Pa.  St.  221 ;  Commonwealth  v.  Alger,  7  Cush.  63 ; 

674 


CH.  XXII.]  COMPONENT   PARTS   OF  A   DEED.  §    835 

§  835.  What  is  a  navigable  stream.  — Perhaps  there  is 
not  a  more  difficult  question  to  answer  in  the  law  of  real 
property.      The    English   common-law   rule   was  that   all 
streams,  in  which  the  tide  ebbed  and  flowed,  were  navigable 
streams,  and  all  others  were  non-navigable.1     In  England 
this  is  not,  as  a  matter  of  fact,  the  arbitrary  rule,  which  it 
would  be,  if  applied  without  qualification  to  the  streams  of 
this  country.     With  the  exception  of  the  Thames,  above 
tide-water,  there   are   no   important  streams   in    England 
which  are  practically  and  actually  navigable,  except  those 
in  which  the  tide  ebbs  and  flows ;  and  there  are  no  tide- 
water streams  of  any  importance  which  are  not  actually 
navigable.     But    in   the    United     States   the    situation    is 
altogether  different.     Here  we  have  fresh-water   streams, 
which  are  navigable,  and  salt-water  streams  of  great  value, 
which  are  not  navigable.     The  application  of  the  common- 
law  rule  to  this  country  would,  therefore,  result  in  nothing 
but  absurd  conclusions.     The  courts  of  this  country  have 
been  discussing  the  problem  for  many  years,  and  have  come 
to  different  conclusions  on  the  various  branches  or  subdi- 
visions of  the  question.     On  only  one  point  is  there  an  ab- 
solute agreement,  viz.  :  that  the  common-law  rule  does  not 
govern  such  questions  in  the  United  States,  so  far  as  the 
right  of  the  public  to  navigate  the  streams  is  concerned. 
That  is,  the  courts  hold  uniformly  that  where  the  streams 
are  sufficiently  deep  and  wide  to  float  boats,  used  in  the  in- 
terests of  commerce  and  agriculture,  the  public  has  a  right 
to  use  them  as  highways.2     But  in  whom  is  the  title  of  the 

Commonwealth  v.  Roxbury,  9  Gray,  451 ;  Martin  v.  O'Brien,  32  Miss.  21 ;  City 
of  Galveston  v.  Menard,  23  Texas,  349 ;  Teschemacher  v.  Thompson,  18  Cal.  21. 

1  3  Washb.  on  Real  Prop.  413 ;  People  v.  Tibbetts,  19  N.  Y.  523 ;  Com- 
monwealth v.  Chapin,  5  Pick.  199. 

»  The  Daniel  Ball,  10  "Wall.  557;  The  Montello,  20  Wall.  439;  Spring  v. 
Russell,  7  Me.  273;  Brown  v.  Chadbourne,  31  Me.  9;  Ingraham  v.  Wil- 
kinson, 4  Pick.  268  ;  Commonwealth  v.  Alger,  7  Cush.  53 ;  The  Canal  Comm'ra 
v.  People,  5  Wend.  423;  People  v.  Piatt,  17  Johns.  195;  Palmer  v.  Mulligan, 
3  Caines,  315;  Claremont  v.  Carlton,  2  N.  H.  369;  O'Fallon  v.  Daggett,  4  Mo. 

675 


§  835         COMPONENT  PARTS  OF  A  DEED.     [PART  III. 

soil  of  the  river's  bed,  or  in  what  rivers  does  the  State  own 
the  title  to  the  bed,  is  differently  decided  in  different  courts. 
The  courts  are  unanimous  in  holding  that  ordinarily,  where 
the  tide  ebbs  and  flows,  the  title  to  the  bed  of  the  stream  is 
in  the  State.1  But  the  State  does  not  own  the  soil  or  bed 
of  every  creek  in  which  the  t:de  ebbs  and  flows.  In  order 
that  the  title  to  the  soil  of  such  creeks  may  be  claimed  by 
the  State,  the  creeks  must  be  practically  navigable.2  But 
in  respect  to  the  title  to  the  beds  of  fresh  water  navigable 
streams  the  courts  are  divided.  A  number  of  the  courts 
have  held  that  the  fresh  water  streams  are  governed  by  the 
common-law  rule,  in  respect  to  the  title  to  the  soil  under 
navigable  streams,  and  that  the  title  to  the  beds  of  fresh 
water  streams  is  in  the  State.3  But  the  Supreme  Court  of 
Mississippi,  in  a  very  able  and  learned  opinion,  drew  a  dis- 
tinction between  public  and  navigable  rivers.  It  was  there 
asserted  that  the  principle,  that  the  title  to  the  soil  of  navi- 
gable rivers,  i.e.,  rivers  in  which  the  tide  ebbs  and  Hows, 
was  in  the  State,  was  derived  from  international  law.  Tidal 
waters  are  the  highways  of  nations,  and  very  properly  the 
title  to  the  beds  of  such  streams  was  vested  in  the  State. 

343 ;  Middleton  v.  Pritehard,  4  111.  560 ;  Morgan  v.  Reading,  3  Smed.  &  M. 
366;  Cates  v.  Wadlington,  1  McCord,  580;  Gavit  v.  Chambers,  3  Ohio,  495; 
Blanchard  v.  Porter,  11  Ohio,  138 ;  Home  v.  Richards,  4  Call,  441 ;  Shrunk  v. 
Schuylkill  Co.,  14  Serg.  &  R.  71 ;  McManus  v.  Carmichael,  3  Iowa,  1 ;  Comm'rs, 
etc.,  v.  Withers,  29  Miss.  29. 

*  Commonwealth  v.  Chapin,  5  Pick.  199 ;  People  v.  Tibbetts,  19  N.  Y.  523 ; 
Smith  v.  Levinus,  8  N.  Y.  472 ;  Keyport  Steamboat  Co.  v.  Farmers'  Transp. 
Co.,  18  N.  J.  Eq.  13 ;  Cobb  v.  Davenport,  32  N.  J.  L.  369 ;  Flanagan  v.  Phila- 
delphia, 42  Pa.  St.  219. 

2  Rowe  v.  Granite  Bridge  Corp.,  21  Pick.  344;  Glover  v.  Powell,  10  N.  J. 
Eq.  211.  See  State  v.  Gilmanton  14  N.  H.'467;  "Wilson  v.  Forbes,  2  Dev.  L. 
30;  Am.  River,  etc.,  Co.  v.  Amsden,  6  Cal.  443. 

3  Barney  v.  Keokuk,  94  U.  S.  324 ;  Carson  v.  Blazer,  2  Binn.  475 ;  Shrunk 
v.  Schuylkill  Co.,  14  Serg.  &  R.  71 ;  McManus  v.  Carmichael,  3  Iowa,  1 ;  Sto- 
ver v.  Jack,  60  Pa.  St.  339 ;  Wainwright  v.  McCuliough,  63  Pa.  St.  66 ;  Martin 
v.  Evansville,  23  Ind.  85 ;  People  v.  Canal  Comm'rs,  33  N.  Y.  461 ;  Bullock  v. 
Wilson,  2  Port.  436;  Martin  v.  Nance,  3  Head,  650;  Wilson  v.  Forbes,  2 
Dev.  L.  30. 

676 


CH.  XXII.]  COMPONENT   PARTS   OF   A   DEED.  §    835 

But  where  the  navigable  river  is  a  fresh  water  stream,  al- 
though a  sound  policy  would  require  a  grant  to  the  public 
of  a  right  of  way  over  it,  there  is  no  reason  why  a  distinc- 
tion  should   be   made    between   them    and   non-navigable 
streams,  in  respect  to  the  location  of  the  title  to  the  soil. 
It  was,  therefore,  held  that  the  public  have  a  right  of  way 
over  fresh  water  streams  which  can  be  navigated,  but  that 
the  title  to  the  bed  is  in  the  riparian  owners,  and  the  bound- 
ary line  is  the  centre  line  of  the  stream.1     It  is  so  essential 
that  there  should  be  uniformity  in  the  adjudications  on  this 
subject  that  the  author  is  induced  to  offer  the  following  sug- 
gestions, which  will  probably  point  out  a  common  meeting- 
ground   for  variant   courts,  and   which   seem    also  to    be 
consistent  with  reason  and  the  necessities  of  life.     Only 
those  streams  will  be  navigable  streams  which  can  be  actually 
navigated,  whether  the  tide  ebbs  or  flows  in  them  or  not. 
The  Supreme  Court  of  the  United  States  has  held  that  those 
rivers,  which  from  their  location  constitute  the  boundaries 
of  States,  and  which  are  used,  or  may  be  adapted  for  use, 
in  interstate  and  foreign  commerce,  are  navigable  streams 
of  the  United  States.2     Let  that  be  a  controlling  principle, 
and  declare  the  title  to  the  bed  of  such  streams  to  be  in  the 
riparian  States,   in  conformity  with  the  decisions  of  the 
United  States  Supreme  Court.     Those  streams  might  very 
properly  be  classed  among  the  highways  of  nations,  for  the 
States  in  this  connection  are  to  be  considered  as  separate 
and  independent  bodies  politic.     But  the  intra-territorial 

1  Steamboat  Magnolia  v.  Marshall,  39  Miss.  109.  The  rule  that  the  title  to 
the  beds  of  those  rivers  is  in  the  riparian  owners  is  supported  by  the  fol- 
lowing authorities:  Canal  Appraisers  v.  People,  17  Wend.  595;  Ingraham 
/.  Wilkins,  4  Pick.  268;  Commonwealth  v.  Alger,  7  Cush.  53;  People  v. 
Piatt,  17  Johns.  195;  Palmer  v.  Mulligan,  3  Caines,  315;  Claremont  v.  Carl- 
ton, 2  N.  H.  369 ;  O'Fallon  v.  Daggett,  4  Mo.  343 ;  Morgan  v.  Reading,  3  Smed. 
&M.  3Q6;  Blanchard  v.  Porter,  11  Ohio,  138;  Rhodes  v.  Otis,  33  Ala.  578; 
Berry  v.  Snyder,  3  Bush,  266  ;  Walker  v.  Public  Works,  16  Ohio,  540;  Ryan 
v.  Brown,  18  Mich.  196;  Ensminger  v.  People,  47  111.  384. 

■'  The  Daniel  Ball,  10  Wall.  567;  The  Montello,  11  Wall.  411. 

677 


§    837  COMPONENT    PARTS    OF    A    DEED.  [PART    III. 

streams  cannot  be  called  international  highways,  and,  there- 
fore, the  title  to  the  soil  of  such  streams  should  be  vested 
in  the  riparian  owners,  subject  to  the  public  easement  of 
navigation. 

§  830.  Ponds  and  lakes. — If  the  pond  or  lake  is  a  nat- 
ural object,  the  boundary  line  is  along  the  edge  at  low-water 
mark.1  If  the  pond  is  artificial,  the  boundary  is  through 
its  centre.2  And  if  a  natural  pond  or  lake  is  raised  by  arti- 
ficial means  by  a  dam  or  trench,  the  boundary  line  will 
continue  to  be  at  low-water  mark  of  the  pond  in  its  natural 
state,  and  the  land  which  was  subsequently  left  bare  by  the 
removal  of  the  obstructions  would  be  the  property  of  the 
adjoining  riparian  owner.3  The  conversion  of  a  fresh  water 
pond  into  a  salt  one  by  an  artificial  trench  or  channel  from 
the  sea  will  not  change  the  boundary.  But  the  boundary 
changes  with  the  natural  and  ordinary  changes  of  the  low- 
water  mark.4 

§  837.  Highways. — Where  land  is  bounded  by  a  high- 
way, the  same  rules  of  construction  apply,  as  in  the  case  of 
non-navigable  streams.  If  the  land  is  described  as  "  bound- 
ing on,"  "  running  along,"  the  highway,  and  the  like,  the 
boundary  line  is  the  thread  or  centre  of  the  way,  although 

1  Waterman  v.  Johnson,  13  Pick.  261 ;  West  Roxbury  v.  Stoddard,  7 
Allen,  167;  Nelson  v.  Butterfield,  21  Me.  229;  Manton  v.  Blake,  62  Me.  38; 
Canal  Comm'rs  v.  People,  5  Wend.  446;  Wheeler  v.  Spinola,  54  N.  Y.  377; 
Jakeway  v.  Barrett,  38  Vt.  323;  Austin  v.  Rutland  R.  R.,  45  Vt.  215;  Primin 
v.Walker,  38  Mo.  99. 

2  Bradley  v.  Rice,  13  Me.  198;  Lowell  v.  Robinson,  16  Me.  357;  Waterman 
v.  Johnson,  13  Pick.  261 ;  Phinney  v.  Watts,  9  Gray,  269;  Wheeler  v.  Spinola, 
54  N.  Y.  377. 

3  Hathorn  v.  Stinson,  12  Me.  183;  Bradley  v.  Rice,  13  Me.  200;  Waterman 
v.  Johnson,  13  Pick.  261.  But  later  decisions  in  these  States  have  qualified 
the  position  assumed  in  the  cases  just  cited  to  this  extent:  that  unless  there  is 
something  in  the  deed  to  support  the  presumption  that  the  grantor  had  in 
mind  the  natural  state  of  the  pond,  when  he  was  describing  the  land,  the 
boundary  line  will  be  the  low-water  mark  of  the  pond  at  the  time  of  the  con- 
veyance.    Wood  v.  Kelley,  30  Me.  47  ;  Paine  v.  Woods,  108  Mass.  170. 

4  3  Washb.  on  Real  Prop.  417  ;  Wheeler  v.  Spinola,  54  N.  Y.  377. 

678 


CH.  XXII.]  COMPONENT   PARTS    OF    A    DEED.  §    837 

the  dimensions  of  the  last  would  exclude  the  highway.  And 
when  there  is  any  doubt  as  to  the  intention  of  the  parties, 
the  presumption  is  always  strong  in  favor  of  the  centre  of 
the  way  being  the  boundary.1  But  if  the  land  is  described 
as  bounding  by  the  side  of  the  street,  or  the  intention  to 
exclude  the  street  is  clearly  manifested  in  some  other  man- 
ner, then  the  boundary  line  will  be  the  nearest  line  of  the 
street  or  highway.2  The  boundary  will  not  extend  to  the 
centre  of  the  highway,  if  the  grantor  only  owns  to  the  line 
of  the  way.3  And  likewise,  if  a  proprietor  lays  out  several 
lots,  all  fronting  on  a  proposed  park,  the  grantees  of  the 
several  lots  will  only  own  to  the  exterior  line  of  the  park, 
and  not  to  the  centre.4  If  the  land  is  described  as  bounding 
on  a  public  street  or  highway,  the  right  to  have  it  kept  open 
passes  to  the  grantee  as  an  appurtenant  easement.5  But  if 
it  is  a  private  way,  a  right  of  way  will  be  acquired  by  the 
grantee  only  upon  the  adjoining  lands  of  the  grantor.6     If 

1  Berridge  v.  Ward,  10  C.  B.  (n.  s.)  400;  Johnson  v.  Anderson,  18  Me.  76; 
Cottle  u.Young,  59  Me.  105;  O'Linda  v.  Lothrop,  21  Pick.  298;  Parker  v. 
Framingham,  8  Mete.  267  ;  Fisher  v.  Smith,  9  Gray,  441 ;  Harris  v.  Elliott,  10 
Pet.  53 ;  Banks  v.  Ogden,  2  Wall.  57 ;  Morrow  v.  Willard,  30  Vt.  118 ;  White 
v.  Godfrey,  97  Mass.  47  ;  Wallace  v.  Fee,  50  N.  Y.  694 ;  Milhan  v.  Sharp,  27 
N.  Y.  624;  Jackson  v.  Hathaway,  15  Johns.  454  ;  Sherman  v.  McKeon,  38  N. 
Y.  271 ;  Child  v.  Starr,  4  Hill,  369 ;  Read  v.  Leeds,  19  Conn.  187 ;  Winter  v. 
Peterson,  24  N.  J.  L.  527 ;  Paul  v.  Carver,  24  Pa.  St.  207 ;  Cox  v.  Freedley,  33 
Pa.  St.  124 ;  Witter  v.  Harvey,  1  McCord,  67 ;  Trustees  v.  Louder,  8  Bush, 
€80;  Canal  Trustees  v.  Havens,  11  111.  557;  Kimball  v.  Kenosha,  4  Wis.  331 ; 
Weisbrod  v.  C.  &  N.  W.  R.  R,  18  Wis.  43;  Dubuque  v.  Maloney,  9  Iowa, 
458. 

s  Salisbury  v.  G.  N.  Railway  Co.,  5  C.  B.  (n.  s.)  174;  Sibley  v.  Holden,  10 
Pick.  249;  Smith  v.  Slocomb,  9  Gray,  36;  Brainard  v.  Boston,  etc.,  R.  R.,  12 
Gray,  410;  Morrow  v.  Willard,  30  Vt.  118;  Hoboken  Land  Co.  v.  Kerrigan, 
SO  N.  J.  L.  16. 

8  Brainard  v.  Boston,  etc.,  R.  R.,  12  Gray,  410;  Church  v.  Meeker,  34  Conn. 
426 ;  Dunham  v.  Williams,  37  N.  Y.  251. 

*  Perrin  v.  N.  Y.  Cent.  R.  R.,  40  Barb.  65 ;  Hanson  v.  Campbell,  20  Md.223. 

5  Cox  v.  James,  59  Barb.  144 ;  3  Washb.  on  Real  Prop.  422,  423. 

6  Smith  v.  Howdon,  14  C.  B.  (n.  s.)  398;  Fisher  v.  Smith,  9  Gray,  444; 
Winslow  v.  King,  14  Gray,  323 ;  White  v.  Godfrey,  97  Mass.  472 ;  Stark  v. 
Coffin,  105  Mass.  330;  Lewis  v.  Beattie,  105  Mass.  410;  Falls  v.  Reis,  74  Pa. 
8t.  439. 

67D 


§  839         COMPONENT  PARTS  OF  A  DEED.     [PART  III, 

the  grantor  does  not  own  the  land,  no  covenant  will  be  im- 
plied from  the  reference  to  a  street  for  the  purpose  of  de- 
scription.1 Where  a  highway  or  street  is  referred  to  as  the 
boundary  line,  the  actual  line,  as  it  is  laid  down,  is  to  be 
taken  as  the  line  of  the  street.  And  although  encroachments 
upon  the  highway  by  the  adjoining  owners  are  not  legalized 
by  the  lapse  of  time,  yet  if  a  fence  has  been  standing  for 
twenty  years  upon  the  highway  as  it  was  originally  laid  out, 
the  fence  will  be  considered  the  true  line  if  the  real  bound- 
ary cannot  be  ascertained  by  record.2  And  if  the  road  or 
street  is  subsequently  abandoned,  the  adjoining  owners  will 
then  hold  the  land  over  which  the  highway  extended,  free 
from  the  public  easement.3 

§  838.  Walls,  fences,  trees,  etc.  — When  walls,  fences, 
trees,  and  the  like,  are  referred  to  as  monuments,  if  they 
are  of  considerable  thickness  or  width,  the  boundary  line  is 
always  in  the  centre  of  the  monument,  as  has  been  seen  to- 
be  the  case  with  streams  and  highways.4 

§  839.  Courses  and  distances. — The  next  element  of 
description  in  the  order  of  preference  is  the  admeasurement 
of  distances  and  the  given  courses  of  the  boundary  lines. 
Where  courses  and  distances  are  given  in  a  deed,  conveying 
a  city  lot  of  comparatively  small  dimensions,  they  are 
greatly  relied  upon  in  determining  the  boundaries.  And 
where  there  are  no  monuments,  parol  evidence  will  not  be 

1  Koberts  v.  Karr,  1  Taunt.  495 ;  Howe  v.  Alger,  4  Allen,  200 ;  Brainard  v. 
Boston,  etc.,  R  R,  12  Gray,  410;  White  v.  Flannigan,  1  Md.  540;  Hanson  v. 
Campbell,  20  Md.  232. 

2  Hallenbeck  v.  Rowley,  8  Allen,  475;  Fisher  v.  Smith,  9  Gray,  441 ;  Lozier 
v.  N.  Y.  Cent.  R  R.,  42  Barb.  468 ;  Bissell  v.  N.  Y.  Cent.  R  R.,  23  N.  Y.  61 ; 
Cross  v.  Morristown,  18  N.  J.  Eq.  305. 

3  Banks  v.  Ogden,  2  Wall.  57;  People  v.  Law,  22  How.  Pr.  115;  Wallace 
v.  Fee,  50  N.  Y.  694 ;  Weisbrod  &  C.  N.  W.  R.  R.,  18  Wis.  43. 

4  Bradford  v.  Cressey,  45  Me.  9 ;  Boston  v.  Richardson,  13  Allen,  154 ;  War- 
ner v.  Southworth,  6  Conn.  471 ;  Child  v.  Starr,  4  Hill.  369. 

680 


CH.  XXII.]  COMPONENT   PARTS    OF    A    DEED.  §    840 

permitted  to  vary  them.  Nothing  but  monuments  can  con- 
trol courses  and  distances.1  The  courses  and  distances  will 
be  the  absolutely  determining  element  in  the  absence  of 
monuments,  although  the  admeasurements  are  given  as  so 
many  feet,  "  more  or  less."2  But  a  survey  is  so  liable  to  be 
erroneous  through  some  defect  in  the  instrument,  or  the 
carelessness  of  the  surveyor,  that  whenever  monuments  are 
given  the  monuments  control  the  courses  and  distances,  al- 
though the  monuments  would  take  in  more  land  than  what 
is  called  for  by  the  survey.3  And  where  the  land  is  de- 
scribed by  another's  land,  the  latter  tract  of  land  is  a  mon- 
ument of  description,  and  the  true  line  of  his  land  will 
control  the  courses  and  distances  given  in  the  deed.4  When 
the  course  is  described  as  "  northerly,"  *«  southerly,"  etc., 
the  line  is  always  understood  as  "  due"  north,  or  south. 
But  reference  is  always  made  to  the  magnetic  meridian  in 
determining  the  direction  of  the  boundary  lines.5 

§  840.  Quantity.  —  The  quantity  of  land  conveyed  is 
sometimes  given;  but  where  there  is  no  covenant  as  to 
quantity  this  element  of  description  is  seldom  resorted  to  in 
determining  the  boundaries,  and  is  under  no  circumstances 

1  Drew  v.  Swift,  46  N.  Y.  209 ;  Chadbourne  v.  Mason,  48  Me.  391 ;  Bagley 
v.  Morrill,  46  Vt.  94. 

2  Flagg  v.  Thurston,  13  Pick.  145 ;  Blaney  v.  Rice,  20  Pick.  62 ;  Block  v. 
Pfaff,  101  Mass.  538;  Cherry  v.  Slade,  3  Murph.  82;  Welch  v.  Phillips,  1 
McCord,  215. 

3  White  v.  Williams,  48  K  T.  344;  Drew  v.  Swift,  46  N.  Y.  207;  Schmitz 
v.  Schmitz,  19  Wis.  210;  Cronin  v.  Richardson,  8  Allen,  423 ;  Brown  v.  Huger, 
21  How.  305 ;  Haynes  v.  Jackson,  59  Me.  386 ;  Murphy  v.  Campbell,  4  Pa.  St. 
485;  Lodge  v.  Barnett,  46  Pa.  St.  484;  Colton  v.  Seavey,  22  Cal.  496;  Miller 
v.  Cherry,  3  Jones,  29 ;  Davis  v.  Rainsford,  17  Mass.  207 ;  Frost  v.  Spaulding, 
19  Pick.  445;  Evansville  v.  Page,  23  Ind.  527. 

*  Peaslee  v.  Gee,  19  N.  Y.  273 ;  Bailey  v.  White,  41  N.  H.  343 ;  Park  v. 
Pratt,  38  Vt.  552. 

6  Brandt  v.  Ogden,  1  Johns.  Cas.  158;  Gordon  v.  Jackson,  5  Johns.  473 ; 
Jackson  v.  Reeves,  3  Caines,  293 ;  Wells  v.  Company,  47  N.  H.  235 ;  Bosworth 
v.  Danzien,  25  Cal.  296. 

681 


§  841         COMPONENT  PARTS  OF  A  DEED.     [PART  III. 

permitted  to  control  the  courses  and  distance  or  the  monu- 
ments.1 

§  841.  Reference  to  other  deeds,  maps,  etc.,  for  descrip- 
tion. —  If,  instead  of  containing  the  description  of  the  land 
conveyed,  the  deed  refers  to  other  deeds,  the  description  of 
the  latter  deed  will  by  such  reference  become  a  part  of  the 
former,  and  has  the  same  effect  as  if  it  had  been  inserted  in 
the  subsequent  deed.2  It  is  not  necessary  that  the  deed 
referred  to  be  recorded,  although  if  the  deed  referred  to  is 
described  as  being  recorded,  no  unrecorded  deed  will  answer 
to  supply  the  description  of  the  premises.3  But  the  refer- 
ence to  another  deed  will  net  be  permitted  to  control  the 
description  actually  contained  in  the  subsequent  deed,  so  as 
to  exclude  a  lot  or  parcel  of  land  described  as  part  of  the 
subject  of  conveyance,  and  not  mentioned  in  the  deed  re- 
ferred to.4  In  the  same  manner,  where  a  reference  in  the 
deed  is  made  to  plans,  maps,  and  the  like,  for  the  monu- 
ments, courses  and  distance,  the  maps  and  plans  become  a 
part  of  the  deed  of  conveyance,  and  supply  the  description 
omitted  in  the  deed.5  But  if  the  boundaries  can  be  ascer- 
tained without  reference  to  the  maps  or  plans,  they  need 

1  Mann  v.  Pearson,  2  Johns.  37 ;  Jackson  v.  Defendorff,  1  Caines,  493 ; 
Powell  v.  Clark,  5  Mass.  355 ;  Snow  v.  Chapman,  1  Koot,  528 ;  Comm'rs  v. 
Thompson,  4  McCord,  434 ;  Hall  v.  Mahew,  15  Md.  551 ;  Miller  v.  Bentley,  5 
Sneed,  671 ;  Wright  v.  Wright,  34  Ala.  194 ;  Dutton  v.  Rust,  22  Texas,  133 ; 
TJfford  v.  Wilkins,  33  Iowa,  113;  Ward  v.  Crotty,  4  Mete.  (Ky.)103;  Stanley 
v.  Green,  12  Cal.  148;  Llewellyn  v.  Jersey,  11  Mees.  &  W.  183. 

2  Knight  v.  Dyer,  57  Me.  176;  Allen  v.  Bates,  6  Pick.  460;  Foss  v.  Crisp, 
20  Pick.  121 ;  Allen  v.  Taft,  6  Gray,  552 ;  Perry  v.  Binney,  103  Mass.  158 ;  Lippitt 
<o.  Kelly,  46  Vt.  523;  Jenks  v.  Ward,  4  Mich.  404;  Vance  v.  Fore,  24  Cal.  444. 

3  Simmons  v.  Johnson,  14  Wis.  526 ;  Caldwell  v.  Center,  30  Cal.  543. 

*  Whitney  v.  Dewey,  15  Pick.  434;  Needham  v.  Judson,  101  Mass.  161. 

6  Kennebec  Purchase  v.  Tiffany,  1  Me.  219;  Thomas  v.  Patten,  13  Me.  329; 
Shirras  v.  Caig,  7  Cranch,  48;  Davis  v.  Rainsford,  17  Mass.  207;  Farnsworth 
v.  Taylor,  9  Gra_y,  162;  Stetson  v.  Daw,  16  Gray,  374;  Chamberlain  v.  Brad- 
ley, 101  Mass.  191;  Fox  v.  Union  Sugar  Co.,  109  Mass.  292;  Birmingham  v. 
Anderson,  48  Pa.  St.  253;  McCausland  v.  Fleming,  63  Pa.  St  36;  Spilleru. 
Scribner,  36  "Vt.  247;  Ferris  v.  Coover,  10  Cal.  622. 
682 


■CH.  XXII.]  COMPONENT   PARTS    OF   A   DEED.  §    842 

not  be  produced  in  evidence.     The  boundary  maybe  estab- 
lished by  any  other  competent  evidence.1 

§  842.  Appurtenants. — Whatever  belongs  to  the  thing 
granted  as  parcel  thereof  will  pass  with  it,  though  it  is  not 
.specifically  referred  to.  Thus,  houses,  window-blinds, 
•doors,  mines,  crops,  and  whatever  else  constitutes  a  part  of 
the  realty,  will  pass  with  the  grant  of  the  land,  unless  expressly 
reserved.2  It  is  also  the  general  rule,  with  very  little  quali- 
fication, that  whatever  is  appendant  or  appurtenant  to  the 
thing  granted  will  pass  with  it  to  the  grantee  as  an  appurte- 
nant. All  easements  attached  to  the  land  granted  as  the 
dominant  estate  are  appurtenant.3  And  whether  a  certain 
right  is  appurtenant,  depends  upon  the  condition  of  the 
property  at  the  time  of  the  conveyance,  and  how  far  the 
right  is  necessary  to  the  complete  enjoyment  of  the  property. 
If,  therefore,  certain  easements  or  servitudes  are  enjoyed 
by  the  grantor  in  connection  with  the  use  of  the  land,  those 
easements  will  pass  to  the  grantee.  And  even  where  the 
servient  estate  is  also  his  property,  the  equitable  easement 
arising  from  the  subservience  of  one  piece  of  land  to  the 
other  will  pass  to  the  grantee  of  the  latter,  if  it  is  essential 

1  Deery  v.  Cray,  10  Wall.  263. 

2  Farrar  v.  Stackpole,  6  Me.  154;  Bracket  v.  Goddard,  54  Me.  313;  Good- 
rich v.  Jones,  2  Hill,  142;  Cook  v.  Whiting,  16  111.481 ;  Powell  v.  Kich,  41  111. 
466;  Noble  v.  Bosworth,  19  Pick.  314;  Daniels  v.  Pond,  31  Pick.  367;  Terhaw 
v.  Ebberson,  1  Pa.  St.  726 ;  Turner  v.  Reynolds,  23  Pa.  St.  199 ;  Kittredge  v. 
Wood,  3  N.  H.  503 ;  Foote  v.  Colvin,  3  Johns.  216;  Mott  v.  Palmer,  1  N.  Y. 
564;  Austin  v.  Sawyer,  9  Cow.  40;  Mcllvaine  v.  Harris,  20  Mo.  457;  Chap- 
man v.  Long,  10  Ind.  465 ;  Tripp  v.  Hasceig,  20  Mich.  254 ;  Bond  v.  Coke,  71 
N.  C.  97 ;  Ring  v.  Billings,  51  111.  475 ;  Baker  v.  Jordan,  3  Ohio  St.  438 ;  Weath- 
erbee  v.  Ellison,  19  Vt.  379 ;  Lewis  v.  Lyman,  22  Pick.  436 ;  Fay  v.  Muzzey,  13 
4Jray,  53. 

3  Plant  v.  James,  5  B.  &  Ad.  791 ;  Harris  v.  Elliott,  10  Pet.  25 ;  Philbrick 
*.  Ewing,  97  Mass.  133;  Kent  v.  Wait,  10  Pick.  138;  Pope  v.  O'Hara,  48  N. 
Y.  455;  Jackson  v.  Hathaway,  15  Johns.  447;  Pickering  v.  Stapler,  5  Serg.  & 
R.  107;  Murphy  v.  Campbell,  4  Pa.  St.  484;  Whalley  v.  Tompson,  1  Bos.  & 
P.  371. 

683 


§  843         COMPONENT  PARTS  OF  A  DEED.     [PART  III. 

to  his  full  enjoyment  of  the  land  granted.1  Although  land 
cannot  be  said  to  pass  as  appurtenant  to  land,  if  the  land, 
expressly  granted,  does  not  admit  of  a  reasonable  enjoy- 
ment without  some  adjacent  land,  which  has  been  used  con- 
stantly with  the  land  granted,  it  will  pass  as  parcel.2  But 
where  an  easement  over  the  adjacent  land  would  provide  for 
the  grantee  a  reasonably  satisfactory  enjoyment  of  the  land 
granted,  the  freehold  in  the  soil  will  not  pass.  The  grantee 
would  only  acquire  an  easement  therein.3 

§  843.  Exception  and  reservation.  —  An  exception  to  a 
grant  withdraws  from  the  operation  of  the  conveyance  some 
part  or  parcel  of  the  thing  which  is  granted,  and  which  but 
for  the  exception  would  have  passed  to  the  grantee  under 
the  general  description.  The  part  excepted  is  already  in 
existence,  and  is  said  to  remain  in  the  grantor.  The  grant 
has  no  effect  upon  it.  A  reservation  is  the  creation,  in  be- 
half of  the  grantor,  of  some  new  right  issuing  out  of 
the  thing  granted,  something  which  did  not  exist,  as 
an    independent    right,    before     the    grant.4      Sometimes 

1  Brigham  v.  Smith,  4  Gray,  297;  Richardson  v.  Bigelow,  15  Gray,  156; 
James  v.  Plant,  5  A.  &  E.  749;  Prestcott  v.  White,  21  Pick.  343;  Hapgood  v. 
Brown,  102  Mass.  453;  Rackley  v.  Sprague,17  Me.  281 ;  Woodman  v.  Smith, 
53  Me.  81 ;  Thompson  v.  Banks,  43  N.  H.  540;  Yoorhies  v.  Burshard,  55  N. 
Y.  102;  Wilcoxon  v.  McGhee,  12  111.  381 ;  Bliss  v.  Kennedy,  43  111.  71.  See- 
ante,  sect.  602. 

2  Woodman  v.  Smith,  53  Me.  81 ;  Allen  v.  Scott,  21  Pick.  25;  Esty  v.  Cur- 
rier, 98  Mass.  501 ;  Webster  v.  Potter,  105  Mass.  414;  Whitney  v.  Olney,  3 
Mason,  282 ;  Davis  v.  Handy,  37  K  H.  65 ;  Thompson  v.  Banks,  43  N.  H.  540 ; 
Mixers.  Reed,  25  Vt.  254;  Voorhiesu.  Burshard,  55  N.  Y.  102;  Blaines  lessee  v. 
Chambers,  1  Serg.  &  R.  169;  Swartz  v.  Swartz,  4  Pa.  St.  353;  Murphy  v. 
Campbell,  4  Pa.  St.  480;  AvoaCo.  v.  Andrews,  30  Conn.  476;  Wilson  v.  Hun- 
ter, 17  Wis.  687;  Bacon  v.  Bowdoin,  22  Pick.  401  ;  Webber  v.  Eastern  R.  R., 
2  Mete.  147;  Blake  v.  Clark,  6  Me.  436;  Moore  v.  Fletcher,  16  Me.  66;  Jack- 
son v.  Hathaway,  15  Johns.  447  ;  Riddle  v.  Littlefield,  53  N.  H.  508. 

3  Stetson  v.  Daw,  16  Gray,  373 ;  Cox  v.  James,  45  N.  Y.  562 ;  Munn  v. 
Worrall,  53  N.  Y.  46 ;  Bartholomew  v.  Edwards,  1  Houst.  25 ;  Jamaica  Pond 
v.  Chandler,  9  Allen,  1G4 ;  Leavitt  v.  Towle,  8  N.  H.  97 ;  Graves  v.  Amoskeag 
Co.,44N.  H.  464;  Peck  v.  Smith,  1  Conn.  103;  Owen  v.  Field,  102  Mass.  104. 

4  Greenleaf  v.  Birth,  6  Pet.  302 ;  Pettee  v.  Hawes,  13  Pick.  323 ;  Hurd  v. 

684 


€H.  XXII.]  COMPONENT   PARTS   OF   A   DEED.  §    843 

the  terms  exception  and  reservation  are  used  synony- 
mously, but  the  distinction  above  given  is  proper  and 
essential.  A  reservation  is  in  the  nature  of  a  grant  to 
the  grantor,  and  therefore  requires  the  same  words  of  limi- 
tation as  in  the  direct  grant  to  the  grantee.  But  an  excep- 
tion requires  no  words  of  limitation.1  A  reservation  can 
only  be  made  to  the  grantor,  and  must  issue  out  of  the  land 
granted.  It  cannot  be  reserved  to  a  stranger  or  out  of 
another  estate,  although  an  attempted  reservation  out  of 
another's  estate  may  operate  as  an  independent  grant  to  the 
grantor  in  a  deed  of  indenture  executed  by  both  parties.2 
The  reservation  properly  appears  in  the  reddendum  clause 
of  the  deed,  while  the  exception  is  properly  incorporated  in 
the  premises,  and  constitutes  a  part  of  the  description.  But 
this  is  a  mere  matter  of  form,  and  is  not  essential  or  im- 
portant in  determining  whether  a  clause  creates  an  excep- 
tion or  a  reservation.  If  an  exception  is  repugnant  to  the 
original  grant,  it  is  void.  Thus,  if  there  be  a  specific  grant 
of  twenty  acres  of  land,  the  exception  of  one  acre  will  be 
repugnant  and  therefore  void.  But  if  the  grant  is  of  a  tract 
of  land,  and  the  quantity  is  mentioned  only  accidentally,  an 
exception  of  one  or  two  acres  is  not  repugnant,  since  the 

Curti9,  7  Mete.  110;  Dyer  v.  Santford,  9  Mete.  395;  Stockbridge  Iron  Co.  v. 
Hudson  Iron  Co.,  107  Mass.  321 ;  Dennis  v.  Wilson,  107  Mass.  591 ;  Richard- 
son v.  Palmer,  38  N.  H.  212;  Emerson  v.  Mooney,  50  N.  H.  316;  Bridger  v. 
Pierson,  45  N.  Y.  601 ;  "Westpoint  Co.  v.  Reymert,  45  N.  Y.  707 ;  Munn  v. 
Worrall,  53  N.  Y.  46 ;  Whitaker  v.  Brown,  46  Pa.  St.  197 ;  Karmuller  v.  Krotz, 
18  Iowa,  357. 

1  Seymour  v.  Courtenay,  5  Burr.  2814 ;  Clapp  v.  Draper,  4  Mass.  266  ;  Ja- 
maica Pond  v.  Chandler,  9  Allen,  170;  Putnam  v.  Tuttle,  10  Gray,  48;  Curtis 
v.  Gardner,  13  Mete.  461 ;  White  v.  Foster,  102  Mass.  378 ;  Stockbridge  Iron 
Co.  v.  Hudson  Iron  Co.,  107  Mass.  321 ;  Keeler  v.  Wood,  30  Vt.  242 ;  Emerson 
v.  Mooney,  50  N.  H.  316  ;  Bean  v.  Coleman,  44  N.  H.  542;  Hornbeck  v.  West- 
brook,  9  Johns.  73  ;  Wheeler  v.  Brown,  46  Pa.  St.  197 ;  Smith  v.  Ladd,  41  Me. 
314 ;  Randall  v.  Randall,  59  Me.  339. 

a  Dand  v.  Kingscote,  6  Mees.  &  W.  174;  Pettee  v.  Hawes,  13  Pick.  322; 
Dyer  v.  Sanford,  9  Mete.  395 ;  Corning  v.  Troy  Iron  Co.,  40  N.  Y.  209 ;  Bridger 
v.  Pierson,  45  N.  Y.  601 ;  Westpoint  Iron  Co.  v.  Reymert,  45  N.  Y.  707 ;  Hill 
v.  Lord,  48  Me.  95. 

685 


§    844  COMPONENT   PARTS   OF   A   DEED.  [PART   III. 

two  elements  of  the  description  can  be  reconciled  so  that 
both  can  take  effect.1  And  where  a  part  or  parcel  of  the 
land  granted  is  excepted  from  the  grant,  not  only  that  spe- 
cific right  or  estate  remains  in  the  grantor,  but  every  other 
right  which  is  appurtenant  thereto,  and  which  is  necessary 
to  the  reasonable  enjoyment  of  the  same.2 

§  844.  Habendum.  —  The  habendum  is  the  clause  which 
in  a  deed  follows  the  words  "  to  have  and  to  hold,"  and 
which  defines  the  quantity  of  interest  or  the  estate  which 
the  grantee  is  to  have  in  the  property  granted.  AVhat  are 
the  words  of  limitation  usually  employed  in  limiting  estates, 
have  been  already  given  in  the  preceding  chapters  on  the 
different  estates,  and  need  not  be  repeated  here.  The 
habendum,  although  properly  constituting  an  independent 
clause  in  a  deed,  is  not  absolutely  necessary.  The  estate 
granted  may  be  limited  in  the  premises,  and  the  habendum 
altogether  omitted.3  And  so  unimportant  is  the  habendum, 
that  if  it  is  repugnant  to  the  limitations  appearing  in  the 
premises  it  will  have  no  effect ;  an  absolutely  repugnant 
habendum  always  yields  to  the  terms  of  the  premises.4  But 
if  by  any  fair  and  reasonable  construction  the  premises  and 
habendum  may  be  reconciled  that  both  can  stand,  then  effect 
will  be  given  to  both.  If,  therefore,  the  limitation  in  the 
premises  is  in  general  terms,  as  to  A.  and  his  heirs  gener- 
ally, and  the  habendum  limits  the  estate  to  A.  and  the  heirs 
of  his  body,  since  the  habendum  is  not  necessarily  contra- 
dictory of  the  premises,  it  will  have  its  proper  effect,  and 

1  Shep.  Touch.  79 ;  Cutler  v.  Tufts,  3  Pick.  272  ;  Spragge  v.  Snow,  4  Pick.  54. 

2  Dand  v.  Kingscote,  6  Mees.  &  W.  174 ;  Howard  v.  Wadsworth,  3  Me.  471 ; 
Sanborn  v.  Hoyt,  24  Me.  118;  Pettee  v.  Hawes,  13  Pick.  322;  Allen  v.  Scott, 
21  Pick.  25. 

3  3  Washb.  on  Real  Prop.  366,  367,  436 ;  Co.  Lit.  6  a ;  Kenworthy  v.  Tullis, 
3  Ind.  96. 

*  Flagg  v.  Eames,  40  Vt.  23 ;  Nightingale  v.  Hidden,  7  R.  I.  118 ;  Tyler  o. 
Moore,  42  Pa.  St.  376 ;  Walters  v.  Breden,  70  Pa.  St.  237. 
686 


CH.  XXII.]  COMPONENT   PARTS   OF   A   DEED.  §    845> 

the  estate  granted  will  be  an  estate-tail.1  But  if  the  prem- 
ises contain  the  specific  limitation,  and  is  followed  by  a  more 
general  limitation  in  the  habendum,  the  latter  limitation 
cannot  enlarge  the  estate  granted  by  the  premises.2  The 
habendum  cannot  serve  to  pass  any  other  parcels  of  land 
than  those  which  are  described  in  the  premises,  nor  to  change 
the  grantees,  or  their  interests,  so  as  to  make  them  tenants 
in  severalty,  where  by  the  premises  they  were  tenants  in 
common,3  although  it  is  probable  that  the  habendum  may 
serve  to  change  the  character  of  a  joint  estate  from  a  joint- 
tenancy  to  a  tenancy  in  common.  The  habendum  may  also 
be  made  to  qualify  and  limit  the  operation  of  the  premises 
to  any  extent,  if  express  reference  is  made  in  the  premises 
to  the  intended  operation  of  the  habendum.*-  The  habendum 
also  contains  generally  the  declarations  of  the  uses  and  trusts, 
subject  to  which  the  grantee  is  to  hold  the  estate  conveyed. 
But  the  declaration  may  appear  in  any  other  part  of  the 
deed  and  be  equally  effective.5 

§  845.  Reddendum.  — This  is  the  clause  which  contains 
the  reservations  and  follows  the  habendum.  The  subject 
of  reservations,  and  their  points  of  difference  from  excep- 
tions, have  already  been  discussed.  The  reservation  may 
be  of  rent,  or  of  any  other  easement,  or  other  interest,  or 
estate  in  land.6 


1  Berry  v.  Billings,  44  Me.  423  ;  Sumner  v.  Williams,  8  Mass.  162;  Jamaica 
Pond  v.  Chandler,  9  Allen,  168;  Ford  v.  Flint,  40  Vt.  382;  Manning  v.  Smith, 
6  Conn.  292;  Moss  v.  Sheldon,  3  "Watts  &  S.  162. 

2  Shep.  Touch.  76;  Nightingale  v.  Hidden,  7  R.  I.  118;  Walters  v.  Breden, 
70  Pa.  St.  237 ;  3  Washb.  on  Real  Prop.  439. 

3  4  Cruise  Dig.  265 ;  Co.  Lit.  26  b,  Butler's  note,  154 ;  Greenwood  v.  Tyler, 
Cro.  Jac.  564 ;  Hafner  v.  Irwin,  3  Dev.  &  B.  434. 

*  Moss  v.  Sheldon,  3  Watts  &  S.  162 ;  Tyler  v.  Moore,  42  Pa.  St.  374.  But 
it  can  never  extend  the  subject-matter  beyond  the  limitations  in  the  premises. 
Manning  v.  Smith,  6  Conn.  292. 

6  Nightingale  v.  Hidden,  7  R.I.  118;  3  Washb.  on  Real  Prop.  440. 

6  See  ante,  sect.  842. 

687 


§    446  COMPONENT   PARTS    OF   A   DEED.  [PART   III. 

§  846.  Conditions.  — The  reddendum  in  an  orderly  deed 
is  followed  by  the  condition,  if  one  is  annexed  to  the  estate 
granted.  What  are  valid  conditions,  and  what  is  their  legiti- 
mate effect  upon  the  estates,  to  which  they  are  attached, 
have  been  already  explained.1 

'  See  ante,  sects.  271-279. 

688 


SECTION  in. 

COVENANTS   IN  DEEDS. 

Section  849.  General  statement. 

850.  Covenant  of  seisin  and  right  to  convey. 

851.  "What  facts  constitute  a  breach. 

852.  Covenant  against  incumbrances. 

853.  What  circumstances  constitute  a  breach  of  covenant  against 

incumbrances. 

854.  Covenant  for  quiet  enjoyment. 

855.  Covenant  of  warranty. 

856.  The  character  of  the  covenant  of  warranty. 

857.  The  feudal  warranty. 

858.  Special  covenants  of  warranty. 

859.  Implied  covenants. 

860.  Who  may  maintain  actions  on  covenants  of  warranty. 

861.  Damages,  what  may  be  recovered. 

862.  What  covenants  run  with  the  land. 

863.  When  breach  of  covenant  works  a  forfeiture  of  estate. 

§  849.  General  statement.  — After  the  parts  of  a  deed, 
already  explained,  are  usually  inserted  the  covenants,  in- 
cluding covenants  of  title.1  As  a  general  proposition,  sub- 
ject to  the  qualification  to  be  hereafter  mentioned,  if  the 
deed  contained  no  express  covenants  of  title  there  is  no  im- 
plied warranty  of  title,  and  the  grantee  is  without  remedy 
against  the  grantor  if  the  title  should  fail.2  Covenants  of 
title  are,  therefore,  generally  used,  and  a  warranty  deed  is 
generally  demanded.  In  order  that  a  covenant  may  be  valid, 
the  deed  in  which  it  is  contained  must  be  valid.3  There  are 
five  principal  covenants,  usually  found  in  modern  convey- 
ances, viz.:   covenants  of  seisin,  right  to  convey,  against 

1  See  post,  sect.  859. 

2  3  Washb.  on  Real  Prop.  447 ;  Williams  on  Real  Prop.  443,  447. 

3  Co.  Lit.  386  a;  3  Washb.  on  Real  Prop.  447;  Scott  v.  Scott,  70  Pa.  St. 
248. 

44  689 


§    850  COVENANTS    IN   DEEDS.  [PART   HI. 

incumbrances,  for  quiet  enjoyment,  and  warranty.  In  the 
Western  and  Southern  States  the  last  covenant  is  generally 
the  only  one  employed.  But  the  others  are  recognized  in 
all  the  States,  and  in  the  Northern  and  Middle  States,  except 
Pennsylvania,  it  is  customary  to  employ  most,  if  not  all,  of 
the  covenants  above  enumerated.1  Covenants  of  seisin  and 
the  right  to  convey  are  held  to  be  practically  synonymous, 
and  may  be  discussed  together.2  Where  the  deed  shows 
specifically  what  is  the  quantity  of  estate  granted,  the  cove- 
nants cannot,  by  variation  in  the  description  of  the  estate, 
enlarge  it.  But  if  there  is  a  general  grant  without  special 
words  of  limitation,  a  general  covenant  of  warranty  to  the 
grantee  and  his  heirs  may  act  as  an  estoppel  in  passing  the 
inheritance  to  the  grantee,  although  words  of  limitation  are 
required  in  the  creation  of  a  fee,  and  there  are  none  in  the 
premises  or  the  habendum? 

§  850.  Covenants  of  seisin  and  right  to  convey.  —  This 
is  a  general  covenant  that  the  grantor  is  lawfully  seised,  and 
had  a  right  to  convey  at  the  time  of  the  conveyance.  If 
the  grantor  is  not  then  possessed  of  the  legal  title,  and  is 
not  in  possession  of  the  premises,  the  covenant  is  broken  as 
soon  as  made,  and  the  grantee,  and  no  one  else,  may  at  once 
bring  an  action  for  the  breach.4     If  the  grantor  has  posses- 

1  "Williams  on  Real  Prop.  447,  Rawle's  note ;  Colby  v.  Osgood,  29  Barb.  339 ; 
Foote  v.  Burnett,  10  Obio,  317;  Caldwell  v.  Kirkpatrick,  6  Ala.  60;  Funk  v. 
Cresswell,  5  Iowa,  62 ;  Van  "Wagner  v.  Van  Nostrand,  19  Iowa,  426 ;  Arm- 
strong v.  Darby,  26  Mo.  517. 

2  Slater  v.  Rawson,  1  Mete.  455 ;  Prescott  v.  Trueman,  4  Mass.  627 ;  Ray- 
mond v.  Raymond,  10  Cush.  134;  Griffin  v.  Fairbrother,  10  Me.  91 ;  Brandt  v. 
Foster,  5  Iowa,  294.     Contra,  Richardson  t?.  Dorr,  5  Vt.  21. 

3  Ferrett  v.  Taylor,  9  Cranch,  53;  Blanchard  v.  Brooks,  12  Pick.  67  ;  Mills 
v.  Catlin,  22  Vt.  104;  Shaw  v.  Galbraith,  7  Pa.  St  111 ;  Ross  v.  Adams,  28  N. 
J.  L.  168  ;  Adams  v.  Ross,  30  N.  J.  L.  509. 

*  Pollard  v.  Dwight,  4  Cranch,  430 ;  Bartholomew  v.  Candee,  14  Pick.  170; 
Slater  v.  Rawson,  1  Mete.  450 ;  Garfield  v.  "Williams,  2  Vt.  327 ;  Mitchell  v. 
"Warner,  5  Conn.  497 ;  Greenby  v.  Wilcocks,  2  Johns.  1 ;  Dickinson  v.  Hoomes, 
8  Gratt.  397 ;  Backus  v.  McCoy,  3  Ohio,  218 ;  Devore  v.  Sunderland,  17  Ohio* 
60. 

690 


CH.  XXII.]  COVENANTS    IN    DEEDS.  §    850 

sion  at  the  time,  but  holds  adversely  to  the  owner  of  the 
paramount  title,  it  has  been  generally  held  that  the  mere 
existence  of  an  outstanding  title  does  not  constitute  a  breach 
of  the  covenant.  But  whether  such  adverse  possession  and 
defeasible  seisin  are  a  sufficient  compliance  with  the  obliga- 
tion of  the  covenant,  has  met  with  a  different  construction 
by  the  different  courts.  It  has  been  held  in  some,  perhaps 
most  of  the  States,  that  the  covenant  of  lawful  seisin  is  sat- 
isfied by  the  possession  of  actual  seisin,  though  it  is  tor- 
tiously  acquired,  and  that  a  subsequent  eviction  of  the  tenant 
constitutes  no  breach  of  the  covenant  of  seisin.1  If  this  be 
the  proper  construction,  then  a  covenant  of  seisin,  or  of 
lawful  seisin,  is  broken,  if  at  all,  as  soon  as  it  is  made,  and, 
in  conformity  with  the  general  common-law  rule  in  respect 
to  the  non-assignability  of  broken  covenants,  cannot  pass 
to  the  assignees  of  the  grantee.  If  the  covenant  is  broken, 
the  grantee  has  nothing  which  he  can  convey.2  But  it  is 
maintained  by  the  courts  of  England,  and  some  of  the  United 
States,  that  a  covenant  of  lawful  seisin  is  both  present  and 
future  in  its  operation,  that  if  the  grantor  has  the  actual 
seisin  it  is  not  immediately  broken,  but  is  subsequently 
broken  if  the  grantee  or  his  assigns  are  evicted  by  the  as- 
sertion of  the  paramount  title.  Being  future  in  its  opera- 
tion, it  is  held  in  those  States  to  pass  to  the  assignee  with  a 
grant  of  the  estate.3     The  failure  to  distinguish  between  a 

1  Greenby  v.  Wilcocks,  2  Johns.  1 ;  Withy  v.  Munford,  5  Cow.  137;  Beddoe 
v.  Wadsworth,  21  Wend.  124 ;  Marslon  v.  Hobbs,  2  Mass.  433 ;  Raymond  v. 
Raymond,  10  Cush.  134;  Clark  v.  Swift,  3  Mete.  390;  Moore  v.  Merrill,  17  N. 
H.  79;  Griffin  v.  Fairbrother,  10  Me.  95;  Wilson  v.  Widenham,  51  Me.  567; 
Mitchell  v.  Warner,  5  Conn.  497 ;  Wilson  v.  Cochrane,  46  Pa.  St.  229 ;  Redwine 
v.  Brown,  10  Ga.  314;  Wilson  v.  Forbes,  2  Dev.  30;  Birney  v.  Hann,  3  A.  K. 
Marsh.  324 ;  Wheaton  v.  East,  5  Yerg.  41 ;  Richard  v.  Brent,  59  111.  45 ;  14  Am. 
Rep.  1 ;  Dale  v.  Shively,  8  Kan.  276 ;  Salmon  v.  Vallejo,  41  Cal.  481. 

2  Redwine  v.  Brown,  10  Ga.  311;  Ross  v.  Turner,  7  Ark.  132;  and  other 
cases  cited  in  note  (8.) 

3  Kingdon  v.Nottle,  1  Maule  &  S.  355;  Richardson  v.  Dorr,  5  Vt.  210;  Mar- 
tin v.  Baker,  5  Blackf.  232  ;  Coleman  v.  Lyman,  42  Ind.  289 ;  Backus  v.  McCoy, 
3  Ohio,  218;    Great  Western,  etc.,  Co.  v.  Saas,  24  Ohio  St.  542 ;  Parker  v. 

691 


§    851  COVENANTS   IN   DEEDS.  [PART   III. 

covenant  of  lawful  seisin  and  of  indefeasible  seisin  in  the 
earlier  cases  no  doubt  gave  rise  to  this  variance  of  judicial 
opinion.  The  better,  and  what  is  deemed  to  be  the  Ameri- 
can, doctrine  is  that  the  covenant  of  lawful  seisin  does  not 
covenant  for  the  conveyance  of  an  indefeasible  estate,  and 
is,  therefore,  not  broken  by  a  subsequent  eviction  of  the 
grantee.  To  hold  that  the  covenant  of  seisin  means  an  in- 
defeasible seisin  would  give  to  that  covenant  the  same  ex- 
tensive operation  as  the  covenant  of  warranty.  Everywhere 
in  the  United  States,  if  the  grantor  expressly  or  impliedly 
covenants  that  he  is  seised  of  an  indefeasible  estate,  it  is  a 
future  covenant  and  runs  with  the  land.  Any  one  who 
holds  under  the  covenantee  may  sue  on  the  covenant, 
whenever  he  has  been  evicted  by  the  paramount  title.1 

§  851 .  What  facts  constitute  a  breach. —  The  covenant  of 
seisin  is  defined  to  be  an  assurance  that  he  has  the  very  estate, 
both  in  quantity  and  quality,  which  he  professes  to  convey.2 
So  if  the  grantor  expressly  conveys  only  the  lands,  ' '  whereof 
he  was  seised  on  "  a  certain  day,  the  covenant  of  seisin  is 
not  broken  if  other  lands  fall  under  the  general  description, 
of  which  he  did  not  have  the  seisin.3  Therefore,  any  out- 
standing right  or  title  which  diminishes  the  quality  or  quan- 
tity of  the  technical  seisin  will  be  a  breach  of  the  covenant. 
It  will  be  broken  if  the  estate  is  less  in  duration  or  quantity 
than  what  is  described.4     So,  also,  if  the  estate  described  is 

Brown,  15  N.  H.  176;  Partridge  v.  Hatch,  18  X.  H.  498;  Brandt  v.  Foster,  5 
Iowa,  294;  Schofield  v.  Homestead  Co.,  32  Iowa,  317;  7  Am.  Rep.  197. 

1  Garfield  v.  Williams,  2  Vt.  328 ;  Preston  v.  Trueman,  4  Mass.  627  ;  Smith 
v.  Strong,  14  Pick.  123;  Raymond  v.  Raymond,  10  Cush.  134;  Abbott  v.  Allen, 
14  Johns.  248;  Stanard  v.  Eldridge,  16  Johns.  2-54;  Lockwood  o.  Sturdevant, 
6  Conn.  373 ;  Bender  v.  Fromberger,  4Dall.  436 ;  Wilson  v.  Forbes,  2  Dev.  30; 
Kincaid  v.  Brittain,  5  Sneed,  123 ;  Collier  v.  Gamble,  10  Mo.  467 ;  Magwire  v. 
Riggan,  44  Mo.  512. 

2  Howell  v.  Richards,  11  East,  641 ;  Pecare  v.  Chouteau,  13  Mo.  527. 

3  Thomas  v.  Perry,  Pet.  C.  Ct.  49. 

*  Downer  v.  Smith,  38  Vt.  468 ;  Lindley  v.  Dakin,  13  Ind.  388 ;  Phipps  v. 
Tarpley,   24  Miss.  597 ;  Kellogg  v.  Malin,   50  Mo.  496 ;  Brandt  v.  Foster,  5 
692 


CH.  XXII.]  COVENANTS    IN   DEEDS.  §    852 

not,  to  any  extent,  the  property  of  the  grantor.1  The  cove- 
nant is  also  broken  where  the  land  conveyed  has  upon  it 
fences,  buildings,  and  other  erections  belonging  to  other 
persons,  if  there  is  no  restraining  clause  in  the  deed.2  But, 
on  the  other  hand,  easements,  the  exercise  of  which  does 
affect  the  technical  seisin  of  the  grantee,  such  as  a  right  of 
way,  a  public  highway,  or  railroad,  will  not  constitute  a 
breach  of  the  covenant.3  An  outstanding  judgment,  mort- 
gage, or  right  of  dower,  does  not  constitute  a  breach  of  the 
covenant,  and  in  the  case  of  a  mortgage,  it  does  not  matter 
whether  the  mortgage  is  construed  to  be  a  conveyance  or 
only  a  lien.4  But  if  the  grantee  is  himself  seised,  he  will  be 
estopped  from  setting  up  his  seisin  in  an  action  for  the 
breach  of  the  covenant  of  seisin.5 

§  852.  Covenants  against  incumbrances. — This  cove- 
nant is  intended  to  provide  security  against  the  assertion  of 
"  every  right  to,  or  interest  in  the  land,  which  may  subsist 
in  third  persons,  but  consistent  with  the  uassing  of  the  fee 

Iowa,  294 ;  Van  Wagner  v.  Van  Nostrand,  19  Iowa,  422 ;  Mott  v.  Palmer,  1  N. 
Y.  564 ;  Wilson  v.  Forbes,  2  Dev.  35 ;  Wilder  v.  Ireland,  8  Jones  L.  90 ;  Sedg- 
wick v.  Hollinback,  7  Johns.  376 ;  Wheeler  v.  Hatch,  12  Me.  389 ;  Comstock 
v.  Comstock,  23  Conn.  352. 

1  Wheelock  v.  Thayer,  16  Pick.  68;  Basford  v.  Pearson,  9  Allen,  389;  Bacon 
v.  Lincoln,  4  Cush.  210;  Morrison  v.  McArthur,  43  Me.  567. 

2  Mott  v.  Palmer,  1  N.  Y.  564 ;  Tifft  v.  Horton,  53  N.  Y.  377;  Powers  v. 
Dennison,  30  Vt.  752  ;  West  v.  Stewart,  7  Pa.  St.  122;  Van  Wagner  v.  Van 
Nostrand,  19  Iowa,  427. 

3  Whitbeck  v.  Cook,  15  Johns.  483 ;  Mills  v.  Catlin,  22  Vt.  98 ;  Lewis  v. 
Jones,  1  Pa.  St.  336;  Fitzhugh  v.  Croghan,  2  J.  J.  Marsh.  429  ;  Vaughn  v.  Stu- 
zaker,  16  Ind.  340;  Kellogg  v.  Malin,  50  Mo.  496;  11  Am.  Kep.  426.  But  it 
has  been  held  to  be  broken  by  an  outstanding  right  to  use  the  water  of  a 
spring.  Lamb  v.  Danforth,  59  Me.  324 ;  Clark  v.  Conroe,  38  Vt.  469.  And  by 
a  right  to  restrain  the  damming  of  water.  Traster  v.  Nelson,  29  Ind.  96 ; 
Walker  v.  Wilson,  13  Wis.  522 ;  Hall  v.  Gale,  14  Wis.  55. 

*  Sedgwick  v.  Hollenback,  7  Johns.  376 ;  Stanard  v.  Eldridge,  16  Johns. 
254 ;  Lewis  v.  Lewis,  5  Kich.  L.  12 ;  Massey  v.  Craine,  1  McCord,  489 ;  Tuite 
v.  Miller,  10  Ohio,  383  ;  Reasoner  v.  Edmundson,  5  Ind.  394.  But  see  Voorhis 
v.  Forsythe,  4  Biss.  409. 

5  Fitch  v.  Baldwin,  17  Johns.  161;  Furness  v.  Williams,  11  111.  229. 

<5!)3 


§    852  COVENANTS    IN    DEEDS.  [PART   III. 

by  the  conveyance."1  The  same  contrariety  of  opinion 
exists  as  to  the  character  of  covenants  against  incumbrances 
as  was  discovered  in  regard  to  the  character  of  covenants  of 
seisin,  viz. :  whether  the  covenant  is  one  in  prossenti,  broken, 
if  at  all,  as  soon  as  it  is  made,  and,  therefore,  does  not  pass 
to  the  grantee's  assigns;  or  whether  it  is  a  future  covenant, 
and,  therefore,  enforcible  by  whoever  is  injured  by  the  in- 
cumbrance. The  generally  prevailing  doctrine  in  this  coun- 
try is  that  it  is  a  covenant  in  prcesenti,  and  does  not  run 
with  the  land.2  But  in  some  of  the  States  of  this  country 
it  is  held  to  be  a  covenant  infuturo,  and,  therefore,  one 
running  with  the  land.  The  covenant  is  broken  when  the 
outstanding  right  is  enforced.3  Probably  this  variance  of 
opinion,  as  in  the  case  of  covenants  of  seisin,  originated  in 
a  failure  to  note  carefully  the  distinction  between  a  covenant 
that  the  estate  is  free  from  incumbrances,  and  a  covenant 
that  the  grantee  shall  enjoy  the  estate  free  from  incum- 
brances. The  latter  is  practically  a  covenant  for  quiet  en- 
joyment, and  being  future  in  character,  passes  with  the  land 
to  the  grantee's  assigns.4     The  grantee  or  his  assignee  may 

1  2  Greenl.  on  Ev„  sect.  242 ;  Prescott  v.  Trueman,  4  Mass.  627 ;  Cary  p. 
Daniels,  8  Mete.  482  ;  Bronson  v.  Coffin,  108  Mass.  175 ;  Mitchell  v.  Warner,  5 
Conn.  527. 

2  Clark  v.  Swift,  3  Mete.  392;  Thayer  v.  Clemence,  22  Pick.  490:  Whitney 
r.  Dinmore,  6  Cush.  127;  Runnels  v.  Webster,  59  Me.  488;  Russ  v.  Perry,  49 
N.  H.  547 ;  Potter  v.  Taylor,  6  Vt.  676  ;  Stewart  v.  Drake,  9  N.  J.  L.  139 ;  Gar- 
rison v.  Sanford,  12  N.  J.  L.  261  ;  Funk  v.  Voneida,  11  Serg.  &  R.  109;  Cath- 
cartw.  Bowman,  5  Pa.  St.  317;  Frink  r.Bellis,  33  Ind.  135;  Funk  v.  Cresswell, 
5  Clarke  Ch.  62;  Pillsbury  «.  Mitchell,  5  Wis.  17.  See  Richard  v.  Bent,  59 
111.38;  14  Am.  Rep.  1. 

3  Foote  v.  Burnett,  10  Ohio,  317.  See  Sprague  v.  Baker,  17  Mass.  586; 
McCrady  v.  Brisbane,  1  Nott  &  M.  104.  In  Iowa  and  Illinois,  although  the 
courts  take  the  position  that  the  covenant  against  incumbrance  is  a  covenant 
inprcesenti,  they  hold  that  it  runs  with  the  land,  and  will  support  an  action  by 
the  second  or  third  grantee  under  the  covenantee.  Ivradler  v.  Sharp,  36  111. 
236;  Richard  v.  Bent,  59  111.  38;  14  Am.  Rep.  1. 

4  Rawle  Cov.  92 ;  Lethbridge  v.  Mytton,  2  B.  &  Ad.  772  ;  Hall  v.  Deane,  IS 
Johns.  105;  Greene  v.  Creighton,  7  Ft.  I.  1 ;  Hutchins  v.  Moody,  30  Yt.  658; 
Carters.  Denman.  23  N.  J.  L.  273;  Grice  v.  Scarborough,  2  Spears,  649;  An- 
derson v.  Knox,  20  Ala.  156. 

694 


CH.  XXII.]  COVENANTS    IN    DEEDS.  §    853 

recover  whatever  loss  he  may  have  sustained  by  the  enforce- 
ment of  the  incumbrance,  and  where  the  covenant  takes  the 
form  of  an  obligation  to  discharge  incumbrances,  the  right 
of  action  accrues  immediately  upon  the  covenantor's  failure 
to  perform.1  If  it  be  an  ordinary  covenant  against  incum- 
brances, the  grantee  can  only  obtain  nominal  damages,  un- 
less he  can  show  that  he  has  suffered  an  actual  loss.  If  the 
incumbrance  be  a  mortgage  or  other  future  claim,  the  dam- 
ages  will  be  nominal,  unless  the  mortgage  or  other  lien  is 
enforced  before  the  action  on  the  covenant  is  instituted. 
But  if  the  incumbrance  is  a  pre-existing  easement,  substan- 
tial damages  may  be  recovered  at  any  time.2 

§  853.  What  circumstances  constitute  a  breach  of  cove- 
nant against  incumbrances.  —  The  following  may  be  men- 
tioned as  the  more  prominent  examples  of  incumbrances, 
the  existence  of  which  will  constitute  a  breach  of  the 
covenant,  supplementing  them  by  the  statement  that  there 
are  others,  and  that  every  outstanding  right  which 
comes  under  the  definition  of  an  incumbrance  above  given 
would  be  a  breach  of  the  covenant:  An  inchoate 
right  of  dower;3  a  judgment  lien;4  an  outstanding  mort- 
gage;5 taxes,  when  ascertained  and  determined;6  an  out- 

1  3  Washb.  on  Real  Prop.  464;  Gardner  v.  Niles,  16  Me.  280;  Jennings  v. 
Morton,  35  Me.  309;  Gilbert  v.  Wiman,  1  N.  Y.  550;  Booth  v.  Starr,  1  Conn. 
249;  Lathrop  v.  Atwood,  21  Conn.  123;  Dorsey  v.  Dashiell,  1  Md.  204;  Ho- 
gan's  Ex'ors  v.  Calvert,  21  Ala.  199. 

2  Whitney  v.  Dinsmore,  6  Cush.  124;  Churchill  v.  Hunt,  3  Denio,  321; 
Ardesco  Oil  Co.  v.  N.  A.  Mining  Co.,  66  Pa.  St.  375;  Richard  v.  Bent,  59  111. 
38 ;  14  Am.  Rep.  1. 

3  Shearar  v  Ranger,  22  Pick.  447 ;  Jenks  v.  Ward,  4  Mete.  412 ;  Fletcher  v. 
State  Bank,  37  N.  H.  397;  McAlpine  v.  Woodruff,  11  Ohio  St.  120.  But  sae 
Bigelow  v.  Hubbard,  97  Mass.  198;  Bostwick  v.  Williams,  36  111.  69. 

4  Jenkins  v.  Hopkins,  8  Pick.  346 ;  Hall  v.  Dean,  13  Johns.  105. 

5  Bean  v.  Mayo,  6  Me.  94 ;  Freeman  v.  Foster,  55  Me.  508  ;  Brooks  v.  Moody, 
25  Ark.  452. 

6  Rundell  v.  Lakey,  40  N.  Y.  514 ;  Barlow  v.  St.  Nicholas  Bank,  63  N.  Y. 
399;  Cochrane  v.  Guild,  106  Mass.  20;  Hill  v.  Bacon,  110  Mass.  388;  Pierce  v. 
Brew,  43  Vt.  292;  Long  v.  Moler,  5  Ohio  St.  271 ;  Almy  v.  Hunt,  48  111.  45; 
Ingalls  v.  Cook,  21  Iowa,  560;  Peters  v.  Myers,  22  Wis.  602. 

GO  5 


§    853  COVENANTS    IN   DEEDS.  [PART   III. 

standing  lease  in  possession;1  conditions  and  covenants, 
restricting  the  use  of  premises.2  And  it  may  be  stated  that 
pre-existing  easements  upon  the  land  will  constitute  breaches 
of  the  covenant  against  incumbrances.  Among  them  may 
be  mentioned  railroads,  private  rights  of  way,  rights  to  arti- 
ficial water-courses,  to  cut  trees,  to  mine,  to  maintain  dams 
and  aqueducts,  etc.3  Although  it  has  been  denied  in  New 
York,  Pennsylvania  and  Wisconsin,4  the  prevailing  doctrine 
is  that  the  existence  of  a  public  or  highway  over  the  land  is 
a  breach  of  the  covenant,  even  though  the  grantee  knew  of 
its  existence.5  Any  one  of  these  circumstances  will  consti- 
tute a  breach  of  the  covenant,  even  though  the  grantee  is 
aware  of  its  existence  when  he  took  the  deed  and  paid 
the  consideration.6 


1  Gale  v.  Edwards,  52  Me.  360 ;  Batchelder  v.  Sturgis,  3  Cush.  201 ;  Weld 
v.  Traip,  14  Gray,  330;  Porter  v.  Bradley,  7B.I.  538;  Cross  v.  Noble,  67  Pa. 
St.  77 ;  Grice  v.  Scarborough,  2  Spears,  649. 

2  Plymouth  v.  Carver,  16  Pick.  183;  Parish  v.  Whitney,  3  Gray,  516; 
Bronson  v.  Coffin,  108  Mass.  175;  Burbank  v.  Pillsburj-,  48  N.  H.  475;  Kellogg 
v.  Robinson,  6  Vt.  276. 

3  Spurr  v.  Andrews,  6  Allen,  420 ;  Prescott  v.  White,  21  Pick.  341 ;  Lamb 
v.  Danforth,  59  Me.  322 ;  8  Am.  Rep.  426 ;  Brook*  v.  Curtis,  50  N.  Y.  639 ;  10 
Am.  Rep.  545;  Russ  v.  Steele,  40  Vt.  310;  Smith  v.  Sprague,  40  Vt.  310; 
Cathcart  v  Bowman,  5  Pa.  St.  319 ;  Wilson  v.  Cochrane,  46  Pa.  St.  233 ; 
Mitchell  v.  Warner,  5  Conn.  497;  Kutz  v.  McCune,  22  Wis.  628;  Burk  v.  Hill, 
48Ind.  52;  17  Am.  Rep.  731;  Barlow  v.  McKinley,  24  Iowa,  70;  Beach  v. 
Miller,  51  111.  206;  2  Am.  Rep.  290;  Kellogg  v.  Malin,  50  Mo.  496;  11  Am. 
Rep.  426. 

*  Whitbeck  v.  Cook,  15  Johns.  483 ;  Patterson  v.  Arthur,  9  Watts,  152 ; 
Wilson  v.  Cochrane,  46  Pa.  St.  229 ;  Kutz  v.  McCune,  22  Wis.  628. 

5  Haynes  v.  Young,  36  Me.  557 ;  Lamb  v.  Danforth,  59  Me.  322 ;  8  Am. 
Rep.  426 ;  Kellogg  v.  Ingersoll,  2  Mass.  101 ;  Parish  v.  Whitney,  3  Gray,  516 ; 
Butler  v.  Gale,  27  Vt.  739 ;  Hubbard  v.  Norton,  10  Conn.  422 ;  Burk  v.  Hill,  48 
Ind.  52;  17  Am.  Rep.  731 ;  Beach  v.  Miller,  51  111.  206;  2  Am.  Rep.  290;  Kel- 
logg v.  Malin,  50  Mo.  496 ;  11  Am.  Rep.  426. 

6  Hoovey  v.  Newton,  7  Pick.  29;  Harlow  v.  Thomas,  15  Pick.  68;  Funk  v. 
Voneida,  11  Serg.  &  R.  112 ;  Hubbard  v.  Norton,  10  Conn.  431 ;  Long  v.  Moler. 
5  Ohio  St.  271;  Medler  v.  Hiatt,  8  Ind.  171;  Snyder  v.  Lane,  10  Ind.  424; 
Beach  v.  Miller,  51  111.  206;  2  Am.  Rep.  290;  Dunn  v.  White,  1  Ala.  645;  Kin- 
caid  v.  Brittain,  5  Sneed,  119.     Contra,  Hutz  v.  McCune,  22  Wis.  628. 

696 


CH.  XXII.]  COVENANTS    IN    DEEDS.  §    855 

§  854.  Covenant  for  quiet  enjoyment.  — This  covenant 
is  "an  assurance  against  the  consequences  of  a  defective 
title,  and  of  any  disturbances  thereupon."  *  The  covenant 
for  quiet  enjoyment  is  in  common  use  in  England,  and  in 
the  United  States  it  is  commonly  met  with  in  leases.  But 
in  the  ordinary  conveyance  of  freeholds  it  is  almost  altogether 
superseded  by  the  covenant  of  warranty,  from  which  it  can- 
not be  materially  distinguished.2  The  operation  of  the  two 
covenants  being  almost  identical,  an  exhaustive  statement 
will  not  be  needed  here.  It  suffices  to  say,  that  nothing 
but  actual  or  constructive  eviction,  by  the  assertion  of  the 
paramount  title,  will  constitute  a  breach  of  this  covenant.3 

§  855.  Covenant  of  warranty. — As  has  been  stated  in 
the  preceding  paragraph,  covenants  for  quiet  enjoyment  and 
of  warranty  are  practically  identical  in  their  operation.  An 
attempt  has  been  made  to  distinguish  them  by  the  statement 
that  the  former  relates  to  the  possession  and  the  covenant 
is  broken  by  an  eviction  of  lawful  right ;  while  the  covenant 
of  warranty  relates  to  the  title,  and  requires  the  eviction  to 
be  by  -paramount  title  as  well  as  by  lawful  right,  in  order  to 
constitute  a  breach.4  But  since  an  eviction  can  be  lawful 
only  under  a  paramount  title,  it  is  difficult  to  see  in  what 
this  supposed  difference  lies.  The  same  acts  which  will 
constitute  a  breach  of  one  covenant  will  be  a  breach  of  the 
other  also.  In  order  that  the  covenants  may  be  broken, 
there  must  be  an  actual  or  constructive  eviction  of  the  whole 

1  Howells  v.  Richards,  11  East,  633. 

2  Rawle  Cov.  125. 

3  Smithy.  Shepard,  15  Pick.  147;  Drew  v.  Towle,  30  N.  H.  537;  Russ  ». 
Steele,  40  Vt.  315;  Sterling  v.  Peet,  14  Conn.  254;  Cowdrey  v.  Coit,  44  N.  Y. 
382 ;  4  Am.  Rep.  690 ;  Ross  v.  Dysart,  33  Pa.  St.  452 ;  Hand  v.  Armstrong,  34 
Ga.  232;  Murphy  v.  Price,  48  Mo.  250;  Moore  v.  Vail,  17  111.  190;  Johnson  v. 
Nyce,  17  Ohio,  G6;  Clark  v.  Lineberger,  44  Ind.  223;  Pence  v.  Duval,  9  B. 
Mon.  49;  Thomas  v.  Stickle,  32  Iowa,  76;  McGary  v.  Hastings,  39  Cal.  360  -r  2 
Am.  Rep.  456.    See  ante,  sects.  187, 195,  196. 

*  Fowler  v.  Poling,  6  Barb.  165. 

697 


§    855  COVENANTS    IN    DEEDS.  [PART    III. 

or  a  part  of  the  premises.1  But  the  grantee  need  not  resist 
the  claim  of  the  contestant  until  he  has  been  evicted  by 
process  of  law.  He  may  voluntarily  yield  the  possession 
upon  demand  of  the  owner  of  the  paramount  title.2  But 
he  does  this  at  his  peril,  and  the  burden  of  proof  in  a  sub- 
sequent action  on  the  covenant  lies  on  him  to  show,  that  the 
title  to  which  he  yielded  possession  was  really  the  para- 
mount title.3  A  judgment  in  ejectment  is  a  breach  of  the 
covenant,  and  the  grantee  need  not  wait  to  be  actually 
evicted.4  But  in  all  these  cases  the  covenant  is  not  broken  by 
eviction,  unless  under  a  lawful  and  paramount  title.5  And 
there  will  be  no  breach  of  the  covenant,  if  land  is  confiscated 
in  the  exercise  of  the  right  of  eminent  domain.6  It  matters 
not  what  may  be  the  nature  of  the  paramount  claim.  If  it 
is  paramount,  and  the  enforcement  of  it  will  take  a  portion, 
or  the  whole  of  the  land  conveyed,  or  will  diminish  the 

1  West  v.  Stewart,  7  Pa.  St  122;  Funk  v.  Cresswell,  5  Iowa,  88;  Mott  ». 
Palmer,  1  N.  Y.  564;  Beebe  v.  Swartwout,  8  111.  179;  Bostwick  v.  Williams, 
36  111.  69.  In  South  Carolina  the  existence  of  a  paramount  title  in  a  third 
person  is  sufficient,  without  eviction,  to  constitute  a  breach  of  the  covenant. 
Biggus  v.  Bradley,  1  McCord,  500 ;  Mackey  v.  Collins,  2  Nott  &  M.  186. 

2  Knepper  v.  Kurtz,  58  Pa.  St.  484 ;  Clarke  v.  McAnulty,  3  Serg.  &  R.  364 ; 
Sprague  v.  Baker,  17  Mass.  586 ;  Hamilton  v.  Cutts,  4  Mass.  349 ;  Gilman  v. 
Haven,  11  Cush.  330 ;  Greenvault  v.  Davis,  4  Hill,  643 ;  Kellogg  v.  Piatt,  33 
N.  J.  328;  Loomis  v  Bedell,  11  N.  H.  73;  Peck  v.  Hensley,  20  Texas,  673; 
Claycomb  v.  Munger,  51  111.  376;  McGary  v.  Hastings,  39  Cal.  360;  2  Am. 
Rep.  456.     Contra,  Ferris  v.  Harshea,  Mart.  &  T.  52. 

3  Stone  v.  Hooker,  9  Cow.  154 ;  Smith  v.  Shepard,  15  Pick.  147 ;  Clark  v. 
McAnulty,  3  Serg.  &  R.  364 ;  Crance  v.  Collenbaugh,  47  Ind.  256. 

*  Loughran  v.  Ros.=  ,45  N.  Y.  792;  Cowdrey  v.  Coit,  44  N.  Y.  382;  4  Am. 
Rep.  690;  Noonan  v.  Lee,  2  Black,  499;  Gleason  v.  Smith,  41  Vt.  293;  Kin- 
caid  v.  Brittain,  5  Sneed,  124;  Hannah  v.  Henderson,  4  Ind  174;  Hale  v.  New 
Orleans,  13  La.  An.  499 ;  King  v.  Kerr's  Adm'rs,  5  Ohio,  158 ;  Norton  v.  Jack- 
son, 5  Cal.  263 ;  Williams  v.  Weatherbee,  1  Ark.  233. 

5  Gleason  v.  Smith,  41  Vt.  296. 

6  Brown  v.  Jackson,  3  Wheat.  452;  Blanchard  v.  Brooks,  12  Pick.  47; 
Sweet  v.  Brown,  12  Mete.  175;  Raymond  v.  Raymond,  10  Cush.  132;  Hall  «. 
Chaffee,  14  N.  H.  215;  Peck  v.  Jones,  70  Pa.  St.  83;  Adams  v.  Ross,  30  N.  J. 
L.  510;  Doe  v.  Dowdall,  3  Houst.  380;  White  v.  Brocaw,  14  Ohio  St.  344; 
Gee  v.  Moorf .  14  Cal.  474 ;  Kimball  v.  Temple,  25  Cal.  452. 

698 


CH.  XXII.]  COVENANTS    IN    DEEDS.  §    856 

value  of  it  by  restricting  the  enjoyment  of  it,  the  assertion 
of  the  claim  will  be  a  breach  of  the  covenant.  Therefore, 
an  outstanding  right  to  an  easement,  conditions  restraining 
the  use  of  the  land,  a  mortgage  or  other  lien,  a  wife's  or 
widow's  dower,  and  the  like,  will  constitute  a  breach  of  the 
covenant  of  warranty,  when  they  are  enforced.1 

§  856.  The  character  of  the  covenant  of  warranty. 

The  covenant  of  warranty  in  its  present  character  is  a  mod- 
ern covenant  of  title,  and  is  an  adaptation  of  an  old  English 
covenant  to  American  wants.  It  is  now  the  most  common 
covenant  of  title,  and  in  the  Southern  and  Western  States 
the  only  one  in  general  use.  This  is  a  personal  obligation, 
binding  the  warrantor  and  his  personal  representatives,  and 
binds  his  heirs  and  devisees  only  when  they  are  expressly 
mentioned,  and  then  only  to  the  extent  of  the  assets  re- 
ceived by  them  from  the  warrantor.  And  as  a  personal 
covenant,  it  may  be  barred  by  the  Statute  of  Limitations.2 
If  the  covenant  is  broken,  as  will  be  more  fully  explained 
in  a  subsequent  paragraph,  the  covenantee  is  entitled  to  an 

action  for  damages  against  the  covenantor.3     But  a  different 

©       © 

remedy  was  provided  in  the  case  of 

1  Lamb  v.  Danforth,  59  Me.  324 ;  8  Am.  Rep.  426 ;  Haynes  v.  Young,  36 
Me.  561;  Day  v.  Adams,  42  Vt.  510;  Russ  v.  Steele,  40  Vt.  310;  Harlow  v. 
Thomas,  15  Pick.  66 ;  Tuft  v.  Adams,  8  Pick.  547 ;  White  v.  Whitney,  3  Mete. 
81 ;  Estabrook  v.  Smith,  6  Gray,  572 ;  Cowdry  v.  Coit,  44  N.  T.  382 ;  4  Am. 
Rep.  690.  But  see  Hendricks  v.  Stark,  37  N.  Y.  106 ;  Janes  v.  Jenkins,  34  Md. 
1 ;  6  Am.  Rep.  300;  Hill  v.  Bacon,  110  Mass.  388;  Flynn  v.  Williams,  1  Ired. 
L.  509;  Southerland  v.  Stout,  68  N.  C.  446;  Moore  v.  Vail,  17  111.  185.  But 
an  incumbrance,  which  the  grantee  undertakes  to  pay,  will  not  work  a  breach 
of  the  covenant.  Stebbins  v.  Hall,  29  Barb.  524;  Belmont  v.  Coman,  22  N. 
Y.  438;  Gage  v.  Brewster,  3]  N.  Y.  221 ;  Trotter  v.  Hughes,  2  Vt.  74;  Allen 
v.  Lee,  1  Ind.  58 ;  Pitman  v.  Conner,  27  Ind.  337. 

2  Cole  v.  Raymond,  9  Gray,  17;  Holden  v.  Fletcher,  6  Curtis,  235;  Emer- 
son v.  Prop'rs,  etc.,  1  Mass.  464;  Townsend  v.  Morris,  6  Cow.  126;  Dobbins  v. 
Brown,  12  Pa.  St.  75;  Caldwell  v.  Kirkpatrick,  6  Ala.  60;  Williams  v.  Weth- 
erbee,  1  Ark.  233;  Athens  v.  Nale,  25  111.  198;  Bostwick  v.  Williams,  36 
111.  70. 

8  See  post,  sect.  861. 

699 


§    857  COVENANTS    IN    DEEDS.  [PART    III. 

§  857 ,  The  feudal  warranty  —  Of  which  the  modern  war- 
ranty is  a  descendant.  The  feudal  warranty  grew  out  of 
the  relation  of  lord  and  vassal.  Upon  receiving  the  homage 
of  the  vassal  the  lord  pledged  himself  to  warrant  and  defend 
the  title  to  the  vassal's  lands,  and  provide  him  with  others 
of  equal  value  if  he  were  ousted  of  his  lands  by  a  paramount 
title.  If  the  vassal  or  tenant  was  evicted  he  could  call  upon 
the  lord  for  some  more  lands,  as  compensation  for  those 
which  he  had  lost.  But  there  was  no  action  for  damages.1 
The  ancient  feudal  warranty  has  long  since  become  obso- 
lete, and  has  been  replaced  by  the  personal  covenant  above 
described.2  In  only  one  respect  does  the  modern  covenant 
bear  any  very  close  and  striking  resemblance  to  the  feudal 
warranty ;  and  that  is,  in  its  operation  as  an  estoppel,  to 
bind  an  after  acquired  title  in  the  hands  of  the  warrantor 
and  privies,  and  prevent  its  enforcement  against  the  grantee. 
Wherever  a  grantor  undertakes  to  convey  an  estate  to  which 
he  has  no  title,  if  the  deed  contains  a  covenant  of  warranty, 
he  is  estopped  from  setting  up  an  adverse  title  which  he  has 
subsequently  acquired.  And  this  is  the  case,  even  though 
the  grantee  has  by  his  deed  acquired  neither  title  nor  pos- 
session. The  grantee  may  maintain  ejectment  against  the 
grantor  so  soon  as  he  has  acquired  the  title  and  possession. 
Or,  if  the  grantor  has  only  acquired  the  title  and  the  land  is- 
in  possession  of  a  third  person,  he  may  maintain  an  equita- 
ble suit  for  a  conveyance  of  the  newly  acquired  title.3 
The  heirs  are  bound  by  the  covenant  of  warranty  as  an  estop- 

1  3  Washb.  on  Real  Prop.  468. 

2  Co.  Lit.  384  a,  Butler's  note,  332 ;  Marston  v.  Hobbs,  2  Mass.  432 ;  C-ore 
v.  Brazier,  3  Mass.  523;  Townsend  v.  Morris,  6  Cow.  12(3;  Caldwell  v.  Kirk- 
patrick,  6  Ala.  60;  4  Kent's  Com.  472 ;  3  Wasbb.  on  Eeal  Prop.  468,  469. 

3  Terrett  v.  Taylor,  9  Crancb,  53 ;  Allen  v.  Sayward,  5  Me.  231 ;  Bates  v. 
Norcross,  17  Pick.  144;  White  v.  Patten,  24  Pick.  324;  Jackson  v.  Murray,  12 
Johns.  201 ;  Jackson  v.  Stevens,  13  Johns.  316;  Baxter  v.  Bradbury,  20  Me. 
260;  Cotton  v.  Ward,  3  B.  Mon,  304;  Jones  v.  King,  25  111.  388;  King  v.  Gil- 
son,  32  111.  353 ;  Hope  v.  Stone,  10  Minn.  141.     See,  also,  ante,  sects.  727-731. 

700 


<CH.  XXII.]  COVENANTS    IN    DEEDS.  §    858 

pel,  in  respect  to  the  lands  acquired  by  descent  from  the 
ancestor  who  warranted,  but  are  not  estopped  from  setting 
up  an  adverse  title  acquired  by  purchase,  although  they  will 
be  liable  in  an  action  on  the  covenant  to  the  extent  of  the 
property  received  by  them  from  the  ancestor.1 

§  858.  Special  covenants  of  warranty.  —  So  far  only 
general  covenants  of  warranty  have  been  referred  to  ;  that 
is,  covenants  in  which  the  grantor  covenants  to  warrant  and 
defend  the  title  against  the  lawful  adverse  claims  of  all  per- 
sons whomsoever.  But  the  covenant  need  not  always  be 
general.  It  may  be  specially  limited  to  the  actions  and 
claims  of  certain  persons.  Thus,  a  covenant  against  all 
persons  claiming  by,  through,  or  under,  the  grantor  is 
a  special  covenant,  and  a  paramount  title  against  the 
grantor,  not  created  by  himself,  is  no  breach  of  the  coven- 
ant. And  if  the  grantor,  after  conveying  with  special 
warranty,  in  which  he  only  covenants  against  any  defects 
in  the  title  resulting  from  his  past  transactions,  acquires 
the  paramount  title,  he  may  set  it  up  against  his  grantees 
and  assigns.  He  is  not  estopped  by  this  special  warranty.2 
In  the  same  manner  the  operation  of  the  covenant  of 
warranty  may  be  limited  by  the  description  of  the  subject- 
matter  of  the  conveyance.  Thus,  if  a  deed  purports  to 
convey  in  terms  the  right,  title  and  interest  of  the  grantor  to 
the  land  described,  instead  of  conveying  in  terms  the  land 
itself,  a  general  covenant  of  warranty  will  be  limited  to  that 
right  or  interest,  and  will  not  be  broken  by  the  enforcement 
of  a  paramount  title  outstanding  against  the  grantor  at  the 

1  Oliver  v.  Piatt,  3  How.  412 ;  Potter  v.  Potter,  1  R.  I.  43 ;  Bates  v.  Nor- 
«ro88,  17  Pick.  14;  Cole  v.  Raymond,  9  Gray,  217;  Torrey  v.  Minor,  1  Smed. 
&  M.  Ch.  489. 

2  Davenport  v.  Lamb,  13  "Wall.  418;  Allen  v.  Sayward,  5  Me.  221 ;  Jackson 
v.  Peck,  4  Wend.  300;  "Woodcock  v.  Bennet,  1  Cow.  711 ;  Jackson  v.  Winslow> 
9  Cow.  13;  Comstock  v.  Smith,  13  Pick.  116;  Trull  v.  Eastman,  3  Mete.  124. 

701 


§    858  COVENANTS    IN    DEEDS.  [PART    III. 

time  of  the  conveyance.1  But  this  position  is  assailed,  and 
not  without  good  grounds,  by  other  authorities.2  Mr.  Wash- 
burn says  :  "  Nor  is  it  easy  to  see  what  the  office  or  purpose 
of  a  covenant  of  warranty  can  be  when  whatever  is  granted 
infallibly  passes,  and  can  never  be  lawfully  diverted  by  any 
future  lawful  act  or  right  of  any  one.  The  grantor  cannot 
reclaim  or  disturb  what  he  has  expressly  granted  ;  nor  could 
any  one  acquire  any  right  to  disturb  his  grantee  by  any  deed 
which  the  grantor  might  subsequently  make.3  Another 
important  question  connected  with  the  present  subject,  and 
one  involving  at  times  considerable  doubt,  is  whether  an 
exception  in  the  operation  of  one  of  two  or  more  covenants 
in  a  deed  wilL  be  extended  to  others,  so  as  to  restrict  their 
operation.  Thus,  if  a  deed  contains  a  covenant  against  in- 
cumbrances, except  as  to  a  certain  mortgage,  followed  by  a 
general  covenant  of  warranty,  will  that  exception  apply  to 
the  warranty,  so  that  foreclosure  under  that  mortgage  will 
not  constitute  a  breach  of  the  covenant  of  warranty.  This 
question  is  always  determined  by  ascertaining  the  declared 
or  implied  intention  of  the  grantor.  If  the  two  covenants 
are  given  in  the  same  connection,  and  from  that  close  con- 
nection it  can  be  implied  that  the  parties  intended  the  ex- 
ception to  apply  to  both  covenants,  both  will  be  treated 
as  special  covenants.  While,  on  the  contrary,  the  latter 
covenant  will  be  general  and  unaffected  by  the  exception,  if 
there  does  not  appear  on  the  deed  to  be  any  intimate  con- 
nection between  the  two  covenants  and  the  exception.     In 

1  Brown  v.  Jackson,  3  Wheat.  452 ;  Van  Rensselaer  v.  Kearney,  11  How. 
325;  Sweet  v.  Brown,  12  Mete.  175;  Raymond  v.  Raymond,  10  Cush.  132; 
Hoxie  v.  Finney,  16  Gray,  332 ;  Blodgett  v.  Hildreth,  103  Mass.  488 ;  Bates  v. 
Foster,  59  Me.  155;  Freeman  v.  Foster,  55  Me.  508;  McNear  v.  Comber,  18- 
Iowa,  14;  Williamson  v.  Test,  24  Iowa,  139;  White  v.  Brocaw,  14  Ohio  St. 
344;  Adams  v.  Ross,  30  N.  J.  L.  510;  Hope  v.  Stone,  10  Minn.  152;  Gee  v. 
Moore,  14  Cal.  474. 

2  Loomis  v.  Bedel,  11  N.  H.  74;  Mills  v.  Catlin,  22  Vt.  104;  Funk  v.  Cress- 
well,  5  Iowa,  66 ;  Rowe  v.  Heath,  23  Texas,  614. 

3  3  Washb.  on  Real  Prop.  477. 

702 


CH.  XXII.]  COVENANTS    IN    DEEDS.  §    859* 

Ho  wells  v.  Richards  the  court  say  :  "He  (the  grantor  y 
might,  from  motives  of  prudence,  be  unwilling  to  subject 
himself  to  a  suit  for  the  existence  of  an  incumbrance,  which 
he  is  willing  to  covenant  shall  never  be  suffered  to  disturb 
his  grantee."  Where  the  exception  expressly  refers  to  the 
covenant  of  seisin  or  against  incumbrances,  the  presump- 
tion is  very  strong  that  it  does  not  apply  to  the  covenants 
for  quiet  enjoyment  or  of  warranty.1 

§  859.  Implied  covenants.  —  At  common  law  the  oper- 
ative word  "  give  "  in  a  deed  of  feoffment  raised  by  impli- 
cation of  law  a  covenant  of  warranty  during  the  life  of  the 
grantor.2  And  so  also  is  there  an  implied  warranty  in  the 
old  technical  conveyance  exchange?  So  also  are  there  im- 
plied covenants  in  leases.4  But,  as  a  general  rule,  in  the 
conveyance  of  freehold  estates  in  this  country  there  are  no 
implied  covenants,  since  the  deeds  in  common  use  are  those 
which  operate  under  the  Statute  of  Uses,  and  they  do  not 
raise  covenants  by  implication.5  But  in  a  number  of  the 
States,  notably  Alabama,  Arkansas,  California,  Delaware, 
Illinois,  Iowa,  Mississippi,  Missouri  and  Pennsylvania,  stat- 
utes have  been  enacted  whereby  the  "  operative  words," 
"  grant, bargain  and  sell,"  imply  general  covenants  of  seisin, 
against  incumbrances,  and  of  warranty  or  quiet  enjoyment. 
The  statutes  vary  somewhat  as  to  details,  but  are  similar  in 

1  Howells  v.  Richards,  11  East,  634;  Smith  v.  Compton,  3B.  &  Ad.  189; 
Sumner  v.  "Williams,  8  Mass.  162 ;  Estabrook  v.  Smith,  6  Gray,  572 ;  Cornell 
v.  Jackson,  3  Cush.  506 ;  Funk  v.  Voneida,  11  Serg.  &  R.  109;  Alexanders. 
Schreiber,  10  Mo.  460 ;  Rowe  v.  Heath,  23  Texas,  614. 

2  Kent  v.  Welch,  7  Johns.  258 ;  Frost  v.  Raymond,  2  Caines,  188. 

3  Dean  v.  Shelley,  57  Pa.  St.  427 ;  Bixler  v.  Sayler,  68  Pa.  St.  148.  But 
this  was  the  case  only  with  the  technical  conveyance,  called  exchange.  There 
was  no  implied  covenant  of  title,  if  the  exchange  was  effected  by  means  of 
mutual  deeds  of  bargain  and  sale.     Gamble  v.  McClure,  69  Pa.  St.  284. 

*  See  ante,  sects.  187-190. 

5  Allen  v.  Sayward,  5  Me.  227 ;  Bates  v.  Foster,  59  Me.  157 ;  Sanford  v. 
Travers,  40  N.  Y.  140;  Ricket  v.  Dickens,  1  Murph.  343;  De  Wolf  v.  Hayden. 
24  111.  529 ;  Walk.  Am.  Law.  381 ;  3  Washb.  on  Real  Prop.  489. 

703 


§    860  COVENANTS    IN    DEEDS.  [PART    III. 

general  effect.1  "Whether  these  statutory  covenants  are  re- 
strained in  their  operation  by  the  assertion  of  a  special 
express  covenant,  is  not  clearly  determined.  There  can,  of 
course,  be  in  a  deed  both  express  and  implied  covenants, 
and  both  can  stand  if  they  are  consistent.  But  if  they 
are  inconsistent,  the  natural  rule  would  be  that  the  im- 
plied covenant  would  yield  to  the  express  covenant.2  And 
although  this  rule  seems  to  be  supported  by  the  authorities 
in  the  abstract,  it  is  difficult  at  times  to  reconcile  their  deci- 
sions in  the  particular  case  with  the  rule  above  stated.3  The 
safest  course,  in  making  a  conveyance  with  special  cove- 
nants, is  to  use  different  operative  words  from  those  which 
by  statute  imply  covenants  of  title.  Thus,  it  has  been  held 
under  the  Missouri  statute  that  covenants  are  not  implied  in 
a  deed,  where  the  grantor  "  bargains,  sells,  releases,  quit- 
claims, and  conveys."4 

§  860.  Who  may  maintain  actions  on  covenants  of  a 
warranty. — Like  covenants  of  quiet  enjoyment,  until  a 
breach  has  been  committed,  a  covenant  of  warranty  runs 
with  the  land  into  the  hands  of  the  assignees,  and  may  be 
sued  upon  by  the  assignee  who  is  in  possession  when  the 

1  4  Kent's  Com.  473 ;  3  Washb.  on  Keal  Prop.  489,  490;  Gratz  o.  Ewalt,  2 
Binn.  95;  Funk  v.  Voneida,  11  Serg.  &  R.  109;  Roebuck  v.  Dupuy,  2  Ala. 
538;  Latbam  v.  Morgan,  1  Smec1  «i  M.  Ch.  611 ;  Alexander  v.  Schreiber,  10 
Mo.  460;  Dickson  v.  Desire,  23  Mo.  151;  Chambers  v.  Smith,  23  Mo.  174; 
Funk  v.  Cresswell,  5  Iowa,  62 ;  Brown  v.  Tomlinson,  2  Greene  (Iowa),  527 ; 
Prettyman  v.  Wilkey,  19  111.  249;  King  v.  Gilson,  32  111.  3o3. 

2  Frontin  v.  Small,  2  Ld.  Raym.  419;  Merrill  v.  Frame,  4  Taunt.  329;  Line 
v.  Stevenson,  5  Bing.  N.  C.  183 ;  Schlencker  v.  Moxsy,  3  B.  &  C.  792  ;  Dennett 
v.  Atherton,  L.  R.  7  Q.  B.  316. 

3  See  Hawk  v.  McCullough,  21  111.  221 ;  Alexander  v.  Schreiber,  10  Mo. 
460;  Funk  v.  Voneida,  11  Serg.  &  R.  109;  Brown  v.  Tomlinson,  2  Greene 
(Iowa),  which  seem  to  oppose  the  doctrine  that  the  express  covenant  will  ex- 
clude the  implied  covenant,  while  Weems  v.  McCaughan,  7  Smed.  &  M.  422. 
supports  the  rule. 

*  Gibson  v.  Chouteau,  39  Mo.  566 ;  Valle  v.  Clemens,  18  Mo.  486. 

704 


CH.  XXII.]  COVENANTS    IN   DEEDS.  §    860 

breach  occurs,  whether  the  alienation  is  voluntary  or  invol- 
untary. After  a  breach  there  can  be  no  assignment  at  com- 
mon law,  and  it  is  still  universally  true  that  the  covenant 
then  ceases  to  run  with  the  land.1  But  in  order  that  a  cove- 
nant may  run  with  the  land  to  assignees,  the  grantee  must 
by  the  conveyance  acquire  the  actual  or  constructive  seisin. 
If  at  the  time  of  the  conveyance  the  grantor  had  neither 
title  nor  seisin,  nothing  passes  by  the  deed,  and  the  cove- 
nant remains  in  the  grantee,  and  cannot  be  enforced  by  an 
assignee.2  For  actual  adverse  possession  under  a  paramount 
title  at  the  time  of  conveyance  is  itself  a  breach  of  the  cov- 
enant.3 This  lack  of  seisin  does  not  prevent  the  covenant 
from  operating  as  an  estoppel  upon  the  subsequently  acquired 
title.4  The  covenant  of  warranty  can  be  and  is  impliedly 
apportioned  between  the  assignees  by  a  conveyance  of  parts 
or  portions  of  the  land,  to  which  the  covenant  is  attached, 
to  different  grantees.  They  each  have  a  several  and  inde- 
pendent action  upon  the  covenant  in  respect  to  their  portion 
of  the  land.5  The  assignee  in  possession  at  the  time  of  the 
breach  is  generally  the  only  person  who  can  maintain  an 

1  Hurd  v.  Curtis,  19  Pick.  459;  Slater  v.  Kawson,  1  Mete.  450;  White  v. 
Whitney,  3  Mete.  81;  Withy  v.  Mumford,  5  Cow.  137;  Ford  v.  Walswoith, 
19  Wend.  334 ;  Booth  v.  Starr,  1  Conn.  244 ;  Chase  v.  Weston,  12  N.  H.  413 ; 
Moore  v.  Merrill,  17  N.  H.  81 ;  Kellogg  v.  Robinson,  6  Vt.  279 ;  Chaumontu. 
Forsythe,  2  Pa.  St.  507 ;  Dickinson  v.  Hoomes,  8  Gratt.  353 ;  Lawrence  v. 
Senter,  4  Sneed,  52;  Redwine  v.  Brown,  10  Ga.  311;  Brown  v.  Metz,  33  111- 
339;  Devin  v.  Hendershott,  32  Iowa,  192. 

2  Slater  v.  Rawson,  1  Mete.  450;  Bartholomew  v.  Candee,  14  Pick.  167; 
Beddoe  v.  Wadsworth,  21  Wend.  120;  Griffin  v.  Fairbrother,  10  Me.  91; 
Barker  v.  Brown,  15  N.  H.  176;  Overfield  v.  Christie,  7  Serg.  &  R.  177;  Dick- 
inson v.  Hoomes,  8  Gratt.  353 ;  Devore  v.  Sunderland,  17  Ohio,  218 ;  Fitzhugh 
v.  Croghan,  2  J.  J.  Marsh.  429.  See  Wead  v.  Larkin,  54  111.  489 ;  Van  Court 
v.  Moore,  26  Mo.  92. 

3  Moore  v.  Vail,  17  111.  185. 

*  McCasker  v.  McEvery,  9  R.  I.  528 ;  Wead  v.  Larkin,  54  111.  489 ;  Van 
Court  v.  Moore,  26  Mo.  92. 

5  3  Washb.  on  Real  Prop.  470;  Kane  v.  Sanger,  14  Johns.  89;  Dickinson 
v.  Hoomes,  8  Gratt.  353. 

45  705 


§    860  COVENANTS    IN    DEEDS.  [PART    III. 

action  upon  the  covenant.1  When  his  immediate  grantor 
also  warranted  the  land  to  him,  the  assignee  may  bring  suit 
on  either  or  both  of  the  covenants,  but  of  course  can  have 
but  one  recovery.2  But  where  there  are  successive  cove- 
nants of  warranty,  given  by  successive  grantors,  under  cer- 
taio  circumstances  an  exception  arises  to  the  general  rule 
just  stated,  that  the  assignee  in  possession  is  the  only  person 
who  can  maintain  an  action  for  the  breach  of  the  covenant. 
Thus,  if  the  assignee  brings  suit,  as  he  may  against  any  one 
of  the  covenantors  but  the  first  or  earliest,  and  recovers  of 
him,  this  covenantor  is  remitted  to  his  right  to  be  indemni- 
fied by  the  prior  covenantors,  and  may  maintain  action 
upon  their  covenants.  But  such  covenantor  can  only  estab- 
lish his  right  to  institute  the  suit  by  showing,  that  the  claims 
of  the  subsequent  assignees  have  been  satisfied  in  full.3 
And  in  order  that  the  prior  covenantor  may  be  bound  by 
the  judgment  against  the  intermediate  covenantor,  it  is  now 
generally  recognized  that  the  latter  may  vouch  in  his  prior 
covenantors,  and  if  they  fail  to  defend  the  title  and  eviction 
follows,  they  cannot  in  the  subsequent  suit  against  them- 
selves set  up  the  defence  that  the  eviction  was  not  under  a 
paramount  title.4     The  notice  of  the  pendency  of  the  suit, 

1  Bickford  v.  Page,  2  Mass.  455 ;  Wheeler  v.  Sohier,  3  Cush.  219 ;  Kane  v. 
Sanger,  4  Johns.  89 ;  Ford  v.  Walsworth,  19  Wend.  334 ;  Griffin  v.  Fairbrother, 
10  Me.  81 ;  Chase  v.  Weston,  12  N.  H.  413 ;  Thompson  v.  Sanders,  5  B.  Mon. 
357. 

2  Withy  v.  Mumford,  5  Cow.  137 ;  De  Chaumont  v.  Forsythe,  2  Pa.  St.  507 ; 
Markland  v.  Crump,  1  Dev.  &  B.  95 ;  Davis  v.  Judd,  6  Wis.  85. 

3  Withy  v.  Mumford,  5  Cow.  137 ;  Suydam  v.  Jones,  10  Wend.  185 ;  Thomp- 
son v.  Shattuck,  2  Mete.  618 ;  Wheeler  v.  Sohier,  3  Cush.  222 ;  Booth  v.  Starr, 
1  Conn.  244 ;  Markland  v.  Crump,  1  Dev.  &  B.  94 ;  Kedwine  v.  Brown,  10  Ga. 
311 ;  Thompson  v.  Sanders,  5  B.  Mon.  357. 

*  Chamberlain  v.  Preble,  11  Allen,  373;  Boston  v.  Worthington,  10  Gray, 
498;  Merritt  v.  Morse,  108  Mass.  276;  Andrews  v.  Gillespie,  47  N.  Y.  487; 
Cooper  v.  Watson,  10  Wend.  205;  Andrews  v.  Davison,  17  N.  H.  416;  Little- 
ton v.  .Richardson,  34  N.  H.  187 ;  Turner  v.  Goodrich,  26  Vt.  708 ;  Smith  v. 
Sprague,  40  Vt.  43 ;  Hinds  v.  Allen,  34  Conn.  195 ;  Chapman  v.  Holmes,  10  N. 
J.  L.  20 ;  Paul  v.  Witman,  3  Watts  &  S.  409 ;  Martin  v.  Cowles,  2  Dev.  &  B. 
706 


CH.  XXII.]  COVENANTS    IN    DEEDS.  §    861 

in  order  to  be  effectual  in  binding  the  prior,  covenantors, 
must  be  certain  and  unequivocal.  But  it  need  not  be  made 
a  matter  of  record.  A  verbal  or  written  notice  dehors  the 
court,  or  the  voluntary  appearance  of  the  prior  covenantor 
in  the  suit,  will  be  sufficient.1 

§  861 .  Damages,  what  may  be  recovered.  —  If  the  action 
is  on  the  covenant  of  seisin,  and  the  covenant  is  satisfied  by 
the  transfer  of  the  actual,  though  tortious,  seisin,  and 
broken,  if  at  all,  by  the  want  of  seisin  at  the  time  of  con- 
veyance, the  measure  of  damages  is  the  consideration  paid, 
if  the  consideration  can  be  ascertained,  and  if  not,  the  value 
of  the  land  at  the  time  of  conveyance.  And  in  determining 
the  consideration,  parol  evidence  is  admissible  to  contradict 
and  control  the  statement  of  consideration  in  the  deed.2  If 
the  grantor  subsequently  acquires  the  paramount  title  before 
his  grantee  has  been  evicted  by  the  adverse  holder  of  the 
title,  inasmuch  as  the  grantee  acquires  in  certain  cases  the 
benefit  of  that  title  under  the  doctrine  of  estoppel,  the, 
grantee  can  then  obtain  only  nominal  damages.  But  full 
damages  are  recoverable,  if  eviction  has  taken  place  before 
the  grantor's  acquisition  of  the  superior  title.3     And  so 

101 ;  Gregg  v.  Richardson,  25  Ga.  570 ;  King  v.  Kerr,  5  Ohio,  154 ;  "White  v. 
Williams,  13  Texas,  258;  St.  Louis  v.  Bissell,  46  Mo.  157;  Boyd  v.  Whitfield, 
19  Ark.  469 ;  McConnell  v.  Downs,  48  111.  271 ;  Claycomb  v.  Munger,  51  111. 
377;  Wendell  v.  North,  24  Wis.  223;  Somers  v.  Schmidt,  24  Wis.  417;  1  Am. 
Rep.  191. 

1  Chamberlain  v.  Preble,  11  Allen,  373;  Littleton  v.  Richardson,  34  N.  H. 
187 ;  Miner  v.  Clark,  15  Wend.  427  ;  Andrews  v.  Gillespie,  47  N.  Y.  487 ;  Paul 
v.  Witman,  3  Watts  &  S.410 ;  Crisfield  v.  Storr,  36  Md.  129 ;  Somers  v.  Schmidt, 
24  Wis.  417 ;  1  Am.  Rep.  191. 

2  Bingham  v.  Weiderwax,  1  N.  Y.  514;  Morris  v.  Phelps,  5  Johns.  49; 
Tucker  v.  Clarke,  2  Sandf.  Ch.  96 ;  Smith  v.  Strong,  14  Pick.  128 ;  Hodges  v, 
Thayer,  110  Mass.  286 ;  Cornell  v.  Jackson,  3  Cush.  506  ;  Catlin  v.  Hurlburt,  3 
Vt.  403  ;  Partridge  ».  Hatch,  18  N.  H.  498 ;  Lee  v.  Dean,  3  Whart.  331 ;  Beau- 
plan  v.  McKeen,  28  Pa.  St.  124;  Farmers'  Bank  v.  Glenn,  68  N.  C.  35;  Cox  v. 
Strode,  2  Bibb,  277 ;  Lacey  v.  Marnan,  37  Ind.  168 ;  Kincaid  v.  Brittain,  6 
Sneed,  123;  Rich  v.  Johnson,  2  Pinney,  88  ;  Dale  v.  Shiveley,  8  Kan.  276.     ' 

3  Baxter  v.  Bradbury,  20  Me.  260 ;  Blanchard  v.  Ellis,  1  Gray,  195 ;  King 
v.  Gilson,  32  111.  356. 

707 


§    861  COVENANTS    IN   DEEDS.  [PART   III. 

also,  if  the  covenant  of  seisin  be  construed  as  covenanting 
for  an  indefeasible  seisin,  and  the  grantor  at  the  time  of  the 
conveyance  has  a  tortious  seisin,  only  nominal  damages  may 
be  recovered,  unless  the  grantee  has  been  actually  evicted, 
or  has  incurred  expense  in  purchasing  the  paramount  title, 
when  in  one  case  the  consideration,  and  in  the  second  case 
the  expenses,  will  be  the  measure  of  damages,  as  in  suits  on 
the  covenant  against  incumbrances.1  In  the  action  on  the 
covenant  against  incumbrances  the  measure  of  damages 
varies  with  circumstances.  If  the  covenant  is  merely  broken 
by  the  existence  of  the  incumbrances,  and  the  grantee  re- 
mains undisturbed  in  his  possession,  as  would  be  the  case 
with  an  outstanding  mortgage,  nominal  damages  can  alone 
be  recovered.2  But  if  the  incumbrance  is  of  a  permanent 
nature,  as  an  existing  easement,  and  the  enjoyment  of  the 
land  is  diminished  by  the  exercise  of  the  easement,  the 
measure  of  damages  will  be  the  loss  in  the  value  of  the 
property,  which  is  occasioned  by  the  enforcement  and  ex- 
ercise of  the  easement.3  If  the  incumbrance  be  an  outstand- 
ing mortgage,  or  an  attachment  or  execution,  the  purchaser 
need  not  wait  for  the  enforcement  of  these  liens  ;  he  may  pro- 
ceed at  once  to  satisfy  them,  and  then  recover  of  the  grantor 
on  his  covenant  against  incumbrances  the  expenses  incurred 
in  extinguishing  the  mortgage  or  removing  the  attachment  ;4 
or  if  he  is  evicted  before  suit  is  brought  on  the  covenant, 

1  Whiting  v.  Dewey,  15  Pick.  428 ;  Catlin  v.  Hurlburt,  3  Vt.  403. 

2  Wyman  v.  Ballard,  12  Mass.  304;  Tufts  v.  Adams,  8  Pick.  547;  Funk  v. 
Voneida,  11  Serg.  &  R.  112. 

3  Haynes  v.  Young,  36  Me.  557 ;  Lamb  v.  Danforth,  59  Me.  322 ;  8  Am. 
Rep.  426 ;  Harlow  v.  Thomas,  15  Pick.  66 ;  Batchelder  v.  Sturgis,  3  Cush. 
201. 

4  Delavergne  v.  Morris,  7  Johns.  358 ;  Estabrook  v.  Smith,  6  Gray,  572 ; 
Johnson  v.  Collins,  115  Mass.  392;  Morrison  v.  Underwood,  20  N.  H.  369; 
Funk  v.  Voneida,  11  Serg.  &  R.  113  ;  Foote  v.  Burnett,  10  Ohio,  317 ;  Stam- 
baugh  v.  Smith,  23  Ohio  St.  584;  Reasoner  v.  Edmundson,  5Ind.  393;  Richard 
v.  Bent,  59  111.  38 ;  14  Am.  Rep.  1 ;  St.  Louis  v.  Bissell,  46  Mo.  157 ;  Eaton  v. 
Lyman,  30  Wis.  41. 

703 


CH.  XXII.]  COVENANTS    IN    DEEDS.  §    862 

he  may  recover  the  consideration  paid  with  interest.1 
And  where  damages  are  recovered  in  satisfaction  of  the 
breach  of  the  covenant  of  seisin,  or  against  incumbrances, 
by  an  actual  eviction,  the  grantor  is  remitted  to  his  title  to 
the  land,  and  the  grantee  is  estopped  from  claiming  any 
rights  in  the  same  under  his  deed.2  The  courts,  although 
uniform  in  their  decisions  as  to  the  measure  of  damages  in 
actions  upon  the  covenants  of  seisin  and  against  incum- 
brances, are  divided  as  to  the  proper  rule  to  be  applied  to 
the  covenants  for  quiet  enjoyment  and  of  warranty.  The 
majority  of  the  courts.,  following  the  principle  of  the  ancient 
feudal  warranty,  hold  that  the  true -measure  of  damages  is 
the  consideration  paid,  and  interest  to  date  of  eviction  or 
of  the  judgment.  Such  is  the  rule  in  England,  the  United 
States  courts,  and  in  Arkansas,  California,  Georgia,  In- 
diana, Iowa,  Kentucky,  Missouri,  Maryland,  Nevada,  New 
Hampshire,  New  Jersey,  New  York,  North  Carolina,  Ohio, 
Pennsylvania,  Tennessee,  Virginia  and  Wisconsin.3  But  in 
Connecticut,  Vermont,  Maine  and  Massachusetts  the  cove- 
nant is  treated  as  one  of  indemnity,  and  the  measure  of 
damages  is  taken  to  be  the  value  of  the  land  at  the  time  of 
eviction.4 

§  862.  What  covenants  run  with  the  land.  —  In  order 
that  a  covenant  may  run  with  the  land,  and  bind  the  assignees, 

1  Chapel  v.  Bull,  17  Mass.  213;  Blanchard  v.  Ellis,  1  Gray,  195. 

3  Porter  v.  Hill,  9  Mass.  34;  Blanchard  v.  Ellis,  1  Gray,  195;  Parker  v. 
Brown,  16  N.  H.  176;  Kincaid  v.  Brittain,  5  Sneed,  124. 

3  Foster  v.  Thompson,  41  ;N.  H.  379;  Lewis  v.  Campbell,  8  Taunt.  715; 
Mack  v.  Patchin,  42  N.  Y.  167  ;  1  Am.  Rep.  506  ;  McGary  v.  Hastings,  39  Cal. 
360;  Crisfield  v.  Storr,  36  Md.  150;  Wilhelm  v.  Fimple,  31  Iowa,  137;  Wade 
v.  Comstock,  11  Ohio  St.  82;  Cox  v.  Henry,  32  Pa.  St.  19;  Terry  v.  Diaben- 
statt,  68  Pa.  St.  400 ;  Hopkins  v.  Lee,  4  Wheat.  118 ;  Dalton  v.  Bowker,  8  Nev. 
190;  Williams  v.  Beekman,  2  Dev.  483;  Davis  v.  Smith,  5  Ga.  285;  Dickson 
v.  Desire,  23  Mo.  166 ;  Pence  v.  Duval,  9  B.  Mon.  49 ;  Brandt  v.  Poster,  5  Iowa, 
298;  Burton  v.  Pveeds,  20  Ind.  93. 

*  Lamb  v.  Danforth,  59  Me.  322;  8  Am.  Rep.  426;  Downer  v.  Smith,  38 
Vt.  464 ;  Horsf'ord  v.  Wright,  Kirby,  3 ;  Bigelow  v.  Jones,  4  Mass.  512 ;  Smith 
v.  Strong,  14  Pick.  128. 

709 


§    862  COVENANTS    IN    DEEDS.  *      [PART    III. 

it  must  bear  an  intimate  relation  with  and  concern  the  estates 
or  lands  conveyed.  It  runs  with  the  land,  so  as  to  bind  the 
covenantor's  assignees,  when  the  performance  of  it  is  ex- 
pressly or  by  implication  made  a  charge  upon  the  land.1 
On  the  other  hand,  the  covenants  will  run  with  the  land  so 
as  to  be  enforceable  by  the  successive  assignees  of  the  land, 
when  the  performance  of  the  covenant  affects  the  value  of 
the  land.  Thus,  covenants  for  quiet  enjoyment,  and  of 
warranty,  run  with  the  land.  So  also  a  covenant  that  the 
grantor  shall  not  erect  and  maintain  structures  upon  an  ad- 
joining lot,  or  erect  another  mill-site  on  some  stream.2  In 
order  that  a  covenant  may  run  with  the  land  there  must  be 
a  privity  of  estate  between  the  covenantor  and  covenantee.3 
And  it  can  only  be  assigned  with  the  land.4  Where  the 
land  consists  of  several  parcels,  or  the  land  is  divided  up 
into  parcels,  and  they  are  conveyed  to  different  grantees, 

1  Thus,  for  example,  covenants  of  rent,  or  for  the  payment  of  any 
other  sum  which  is  made  a  charge  upon  the  land.  Hurst  v.  Rodney,  1 
Wash.  375;  Sandwith  v..  De  Silver,  1  Browne  (Pa.)  221;  Astor  v.  Miller,  2 
Paige,  68;  Van  Rensselaer  v.  Dennison,  35  N.  Y.  3^3;  Worthington  v.  Hewes, 
19  Ohio  St.  66 ;  Goudy  v.  Goudy,  Wright  (Ohio),  410;  Thomas  v.  Von  Kapff, 
6  Gill  &  J.  372 ;  Wooliscroft  v.  Norton,  15  Wis.  198.  See  mite,  sect.  190. 
Covenants,  not  to  use  the  land,  or  only  to  use  it,  in  the  specified  manner.  Bar- 
ron v.  Richards,  3  Edw.  Ch.  96 ;  s.  c,  8  Paige,  351 ;  St.  Andrews  Church  Ap- 
peal, 67  Pa.  St.  512;  Winfield  v.  Henning,  21  N.  J.  L.  188;  Jeter  v.  Glenn,  9 
Rich.  L.  374 ;  Thomas  v.  Poole,  7  Gray,  83.  St-e  ante,  sect.  603.  A  covenant 
to  maintain  fences,  or  to  permit  the  enjoyment  of  any  other  easement.  Bron- 
son  v.  Coflin,  108  Mass.  175;  Duify  v.  N.  Y.,  etc.,  R.  R.,  2  Hill,  496 ;  Brewer  v. 
Marshal],  18  N.  J.  Eq.  337;  Noriieetv.  Cromwell,  64  N.  C.  1 ;  Walsh  v.  Bar- 
ton, 24  Ohio  St.  28;  Easter  v.  Little  Miami  R.  R.,  14  Ohio  St.  48;  Dorsey  v. 
St.  Louis,  etc.,  R.  R.,  58  111.  65.  But  an  executory  covenant  to  erect  a  party- 
wall  will  not  run  with  the  land,  so  as  to  bind  the  assignees  of  the  covenantor. 
Cole  v.  Hughes,  54  N.  Y.  444 ;  13  Am.  Rep.  611. 

2  Trustees  of  Watertown  v.  Cowen,  4  Paige,  510:  Norman  v.  Wells,  17 
Wend.  136;  Dailey  v.  Beck,  Bright.  107;  Brew  v.  Van  Denman,  6  Heisk.433. 

3  Morse  v.  Aldrich,  19  Pick.  449 ;  Cole  v.  Hughes,  54  N.  Y.  444 ;  13  Am. 
Rep.  611 ;  Kirkpatrick  v.  Peshine,  24  N.  J.  Eq.  206. 

4  Wilson  v.  Wiedenham,  51  Me.  566;  Randolph  v.  Kinney,  3  Rand.  394; 
Nesbit  v.  Brown,  1  Dev.  Eq.,  30;  Martin  v.  Gordon,  24  Ga.  533. 

710 


CH.  XXII.]      '  COVENANTS    IN    DEEDS.  §    862 

the  covenant  is  divided  up  among  them,  and  each  may  sue 
or  be  sued  on  his  portion  of  the  covenant.1 

§  863.  When  breach  of  covenant  works  a  forfeiture  of 
estate.  —  The  breach  of  a  covenant  running  with  the  land 
will  not  of  itself  work  a  forfeiture  of  the  estate,  to  which  it 
is  annexed.  The  breach  only  gives  rise  to  a  personal  action 
for  damages  on  the  covenant,  or  an  equitable  action  for  its 
enforcement.  But  it  may  by  express  limitation  be  made  to 
operate  as  a  condition  as  well  as  a  covenant.  In  such  a. 
case,  the  breach  of  the  covenant  is  the  breach  of  a  condi- 
tion subsequent,  and  the  grantor  may  re-enter.  Where  the 
forms  of  expression  usual  in  the  creation  of  a  condition, 
such  as  "  on  condition,"  "  provided  always,"  and  the  like, 
are  employed,  nothing  further  is  needed  to  give  the  cove- 
nant the  character  and  force  of  a  condition.  But  generally, 
if  other  words  are  used,  it  is  necessary  that  the  covenant 
should  contain  a  clause  of  forfeiture,  or  the  reservation  of 
a  right  of  entry  upon  the  breach  of  the  covenant,  in  order 
that  the  breach  may  work  a  forfeiture  of  the  estate.2 

1  Astor  v.  Miller,  2  Paige,  68 ;  Johnson  v.  Blydenburg,  31  N.  Y.  427. 

2  Rawson  v.  Uxbridge,  7  Allen,  125 ;  Chapin  v.  Harris,  8  Allen,  594 ;  Ayer 
v.  Emery,  14  Allen,  69 ;  Packard  v.  Ames,  10  Gray,  325 ;  Moore  v.  Pitts,  53 
N.  T.  85 ;  "Walters  v.  Breden,  70  Pa.  St.  235 ;  Supervisors,  etc.,  v.  Patterson, 
66  HI.  119;  Board,  etc.,  v.  Trustees,  etc.,  63  111.204;  Warren  v.  Meyer,  22 
Iowa,  551.  See  Parsons  v.  Miller,  18  Wend.  564;  Emerson  v.  Simpson,  43  N. 
H.  475 ;  Sharon  Iron  Co.  v.  Erie,  41  Pa.  St.  341 ;  Gadberry  v.  Sheppard,  27 
Miss.  203.     See  also  ante,  sect.  272,  n. 

711 


CHAPTER  XXin. 

TITLE    BY  DEVISE. 

Section  872.  Definition  and  historical  outline. 

873.  By  what  law  are  devises  governed. 

874.  The  requisites  of  a  valid  will. 

875.  A  sufficient  writing. 

876.  What  signing  is  necessary. 

877.  Proper  attestation,  what  is. 

878.  Who  are  competent  witnesses. 

879.  Who  may  prepare  the  will  —  Holographs. 

880.  What  property  may  be  devised. 

881.  A  competent  testator,  who  is. 

882.  Who  may  be  devisees  —  What  assent  necessary. 

883.  Devisee  and  devise  must  be  clearly  defined  —  Parol  evidence. 

884.  Devisees  of  charitable  uses. 

885.  Lapsed  devises  —  What  becomes  of  them. 

886.  Revocation  of  wills. 

887.  Revocation  by  destruction  of  will. 

888.  Revocation  by  marriage  and  issue. 

889.  Revocation  by  alteration  or  exchange  of  property. 

890.  Revocation  by  subsequent  will  or  codicil. 

891.  Contingent  wills. 

892.  Probate  of  will. 

§  872.  Definition  and  historical  outline. —  A  title  by 
devise  is  that  title  to  lands  which  is  created  by  will.  The 
term  "  devise  "  is  properly  applicable  only  to  real  estate. 
The  transfer  by  will  of  personal  property,  or  of  chattel 
interests  in  real  property,  is  called  a  bequest.  A  will  is  an 
instrument  of  conveyance,  by  which  the  testator  undertakes 
to  direct  the  disposition  of  his  property  after  his  death. 
It  has  always  been  possible  at  common  law  to  make  a  testa- 
mentary disposition  of  personal  property.  Under  the  Saxon 
laws  lands  were  devisable  as  freely  as  they  were  alienable; 
but  upon  the  Conquest  of  England  by  the  Normans,  the 
712 


CH.  XXIII.]  TITLE    BY   DEVISE.  §    872 

same  policy  which  dictated  the  deprivation  of  the  right  of 
alienation  called  for  the  abolition  of  the  right  to  dispose  of 
lands  by  will.  Accordingly,  lands  could  not,  after  the  Nor- 
man Conquest,  be  devised.  But  upon  the  introduction  of 
the  doctrine  of  uses  means  were  discovered,  whereby  such 
a  disposition  could  be  made.  It  will  be  remembered  that,, 
in  formulating  the  law  of  uses,  courts  of  equity  only  adopted 
those  rules  governing  legal  estates  which  were  conformable 
to  the  policy  of  the  court  in  respect  to  uses.  Hence  they 
declared  that  uses  were  devisable,  although  the  legal  estates 
which  supported  them  were  not.  When  the  Statute  of  Uses 
was  passed  the  use  became  united  to  the  legal  estate,  and 
this  mode  of  devising  lands  was  taken  away.  But  in  con- 
nection with  uses  there  had  been  developed  the  doctrine  of 
powers,  whereby  one  could  convey  lands  to  the  use  of  whom- 
ever the  grantor  should  appoint  by  will.  The  appointee 
would  take,  not  by  force  of  the  will,  but  under  the  deed  of 
conveyance.1  And  after  the  passage  of  the  Statute  of  Uses, 
as  soon  as  he  was  appointed  by  the  will  of  the  grantor,  the 
use  thereby  created  and  vesting  in  him  was  immediately  ex- 
ecuted by  the  statute,  and  he  acquired  the  legal  estate  as 
effectually  as  if  the  lands  could  have  been  devised  directly 
to  him.  Mr.  Washburn  states  that  the  effect  of  the  Statute 
of  Uses  "  was  to  destroy  the  power  of  devising  lands  by  the 
way  of  uses;  and  they  accordingly  became  undevisable, 
and  remained  so  until  the  Statute  of  Wills."  2  This  is  true 
so  far  as  the  power  to  devise  a  vested  use  is  concerned. 
But  a  power  of  appointment  by  will  was  not  affected  by  the 
statute.  The  use  created  by  the  exercise  of  the  power  is 
contingent  until  the  power  is  exercised,  and  hence  the  stat- 
ute could  not  operate  upon  it,  so  as  to  destroy  the  power  to 
make  a  devise  in  this  way.  At  any  rate,  such  a  disposition 
could  be  made  before  the  Statute  of  Uses,  and  it  has  uni- 
versally been  recognized  as  an  effective  mode  of  disposition. 

1  See  ante,  sect.  659.  2  3  Washb.  on  Real  Prop.  501,  602. 

713 


§    873  TITLE    BY    DEVISE.  [PART    III. 

since  the  Statute  of  Wills,  and  independent  of  the  latter 
statute.  Furthermore,  no  reason  has  been,  or  can  be,  as- 
signed why  it  was  not  just  as  effective  between  the  enact- 
ments of  the  Statute  of  Uses  and  the  Statute  of  "Wills, 
which  was  enacted  in  the  32  and  34  Hen.  VIII.,  which  ex- 
pressly enabled  the  proprietors  of  lands  to  dispose  of  their 
legal  estates,  without  resorting  to  the  indirect  mode  of  creat- 
ing  a  power  of  appointment.  The  effect  of  this  Statute 
of  Wills,  and  of  similar  ones  passed  in  the  different  States 
of  the  American  Union,  constitutes  the  subject  of  this 
chapter. 

§  873.  By  what  law  are  devises  governed.  —  Likeall  other 
legal  questions  arising  in  respect  to  the  rights  in,  or  issuing 
out  of,  lands,  the  legality  and  effect  of  devises  are  governed 
by  the  law  of  the  place  where  the  land  is  situated,  the  lex 
loci  rei  sitae.  In  determining,  therefore,  the  validity  of  a 
will  of  real  property,  the  place  where  the  will  happens  to 
be  made  is  of  no  importance.  The  provisions  of  the  lex 
loci  rei  alone  govern.1  But  in  respect  to  the  interpretation 
of  a  will,  since  the  object  of  all  efforts  at  interpretation  is 
to  ascertain  the  intention  of  the  testator,  it  seems  to  be  the 
established  rule  that  the  law  of  the  domicile  in  force  at  the 
making  of  the  will  will  govern,  unless  the  testator  appears 
to  have  had  the  provisions  of  the  lex  loci  in  mind.2  The  lex 
loci  rei  sitae,  governs  chattel  interests  in  lands  as  well  as  in 

1  Story  Confl.  Laws,  sect.  474;  4  Kent's  Com.  513;  1  Kedf.  on  "Wills,  387; 
Kerr  v.  Moon,  9  "Wheat.  565;  U.  S.  v.  Crosby,  7  Cranch,  115;  Potter  v.  Tit- 
comb,  22  Me.  300 ;  Moultrie  v.  Hunt,  23  N.  Y.  394 ;  Bascom  v.  Albertson,  34 
N.  Y.  584;  Cutter  v.  Davenport,  1  Pick.  81 ;  Morrison  v.  Campbell,  2  Rand. 
209 ;  Holman  v.  Hopkins,  27  Texas,  38 ;  Swearingen  v.  Morris,  14  Ohio  St. 
424;  Johnson  v.  Copeland,  35  Ala.  521;  Varner  v.  Bevil,  17  Ala.  286;  Wil- 
liams v.  Saunders,  5  Coldw.  60;  Applegate  v.  Smith,  31  Mo.  166;  Richards  v. 
Miller,  62  111.  417;  Cornelison  v.  Browning,  10  B.  Mon.  425;  Thieband  v.  Se- 
bastian, 10  Ind.  454;  Morris  v.  Harris,  15  Cal.  226. 

1  2  Greenl.  on  Ev.,  sect.  671 ;  Story  on  Confl.,  sect.  479  h. 

714 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    875 

real  estate.     Leaseholds  are,  therefore,  governed  by  that 
law.1 

§  874.  The  requisites  of  a  valid  will. — The  following 
may  be  mentioned  as  the  principal  requisites  of  a  will :  A 
sufficient  writing,  proper  attestation,  subject-matter,  a  com- 
petent testator,  a  competent  devisee. 

§  875.  A  sufficient  writing.  —The  statute  32  Hen.  VIII. 
empowers  the  holders  of  lands  to  dispose  of  them  by  their 
last  will  and  testament  in  writing.  No  particular  form  of 
instrument  is  prescribed,  and  none  is  required,  provided 
the  words  and  forms  of  expression  used  sufficiently  indicate 
the  intention  to  make  a  will,  and  describe  clearly  the  property 
upon  which  the  will  is  to  operate  and  the  person  to  whom  it 
shall  go.  Indeed,  an  instrument  in  the  form  of  a  deed  has 
been  held  to  operate  as  a  will.2  The  same  instrument  may  be 
held  to  be  partly  a  deed  and  in  other  respects  a  will.3  The 
presumption,  however,  is  against  an  instrument,  in  form  a 
deed,  operating  as  a  will.  Where  it  appears  to  have  been 
the  intention  that  the  instrument  shall  operate  as  a  deed,  it 
cannot  take  effect  as  a  will,  although  it  may  be  absolutely 
void  as  a  deed.  And  it  is  incumbent  upon  the  party  claim- 
ing under  the  instrument  to  show  that  it  was  executed  animo 


1  Thompson  v.  Adv.-Gen.,  12  CI.  &  Fin.  (H.  L.  Cas.  1) ;  Freke  v.  Carbeny, 
L.  E.  16  Eq.  461. 

2  Manly  v.  Lakin,  1  Hagg.  130 ;  Henderson  v.  Farbridge,  1  Russ.  479 ;  Gage 
v.  Gage,  12  N.  H.  371 ;  Turner  v.  Scott,  51  Pa.  St.  126;  Frederick's  Appeal, 
62  Pa.  St.  338;  Stewart  v.  Stewart,  5  Conn.  317;  Corey  v.  Dennis,  13  Md.  1 ; 
Wagner  v.  McDonald,  2  Harr.  &  J.  346 ;  Ingram  v.  Porter,  4  McCord,  198 ; 
Wheeler  v.  Durant,  3  Rich.  Eq.  452;  Symmes  v.  Arnold,  10  Ga.  506;  Hall  v. 
Bragg,  28  Ga.  330 ;  Gillham  v.  Mustin,  42  Ala.  365 ;  Harrington  v.  Bradford,  1 
Miss.  520;  Wall  v.  Wall,  30  Miss.  91 ;  Allison  v.  Allison,  4  Hawks,  141 ;  Ste- 
venson v.  Huddlestone,  13  B.  Mon.  299 ;  Millican  v.  Millican,  24  Texas,  426 ; 
Burlington  University  v.  Barrett,  22  Iowa,  60. 

8  Jacks  v.  Henderson.  1  Desau.  543 ;  Robinson  v.  Schley,  6  Ga.  515 ;  Wat- 
kins  v.  Dean,  10  Yerg.  321 ;  Taylor  v.  Kelly,  31  Ala.  59. 

715 


§    875  TITLE    BY    DEVISE.  [PART    III. 

testandi.1  The  intention  may  be  ascertained  either,  when  it. 
is  expressed  on  the  face  of  the  instrument,  from  the  under- 
taking to  dispose  of  property  after  death,  in  such  a  manner 
that  the  instrument  cannot  take  effect  as  a  deed,  or  by  parol 
evidence,  where  there  is  no  expression  of  intent,  and  it  is 
doubtful  on  the  face  of  the  instrument  in  what  manner  the 
donor  intended  the  instrument  to  operate.  The  admissi- 
bility of  parol  evidence  may  be  a  disputed  point;  and,  cer- 
tainly where  it  is  possible,  the  intention  must  be  gathered 
from  the  contents  of  the  whole  instrument.2  It  is  not  nec- 
essary that  the  will  or  any  part  of  it  should  be  actually 
written.  Printing,  engraving  and  lithographing  are  held  to 
be  equivalent  to  writing,  and  to  satisfy  the  requirement  of 
the  Statute  of  Frauds.3  It  is,  likewise,  not  necessary  that 
the  will  be  written  in  ink.  A  valid  will  may  be  written  in 
pencil.4  But  where  the  will  is  written  partly  in  ink,  partly 
in  pencil,  and  partly  printed,  and  the  writing  in  ink  made 
sense  with  the  printed  matter,  and  appeared  to  be  a  com- 
plete will  without  the  aid  of  the  pencil  writing,  it  was  held 
that  the  writing  in  pencil  constituted  no  part  of  the  will.6 

1  Combs  o.  Jolly,  3  N.  J.  Eq.  625;  Collins  v.  Townley,  21  N.  J.  Eq.  353; 
Kohrer  v.  Stebman,  1  Watts,  442;  Todd's  Will,  2  Watts  &  S.  145;  Frew  v. 
Clark,  80  Pa.  St.  170;  Fort  v.  Fort,  3  Dev.  L.  19 ;  Duke  v.  Dyches,  2  Strobh. 
Eq.  353;  Brunson  v.  King,  2  Hill  (S.  C.)  Ch.  4S3 ;  Syrames  v.  Arnold,  10  Ga. 
506;  Anderson  v.  Pryor,  18  Miss.  620;  Edwards  v.  Smith,  15  Miss.  197;  Gold- 
ing  v.  Golding's  Adm'r,  24  Ala.  122 ;  Allison  v.  Allison,  4  Hawks,  141 ;  Phipps 
v.  Hope,  16  Ohio  St.  586. 

2  See  McGee  v.  McCants,  1  McCord,  517;  Tappan  r.  Diblois,  45  Me.  122; 
Hall  v.  Chaffee,  14  N.  H.  215 ;  Hawley  v.  Northampton,  8  Mass.  3 ;  Wright  v. 
Barrett,  13  Pick.  41 ;  Lythe  v.  Beveridge,  58  N.  Y.  592 ;  Stokes  v.  Tilly,  9  N. 
J.  Eq.  130 ;  Provost  v.  Provost,  27  N.  J.  Eq.  296 ;  Asoy  v.  Hoover,  5  Pa.  St 
21 ;  Barker's  Appeal,  72  Pa.  St.  420;  Bowly  v.  Lamont^  3  Harr.  &  J.  4;  Pai- 
ker  v.  vVasley,  9  Gratt.  477 ;  Gillis  v.  Harris,  6  Jones  Eq.  267 ;  Cook  v.  Weaver, 
12  Ga.  47;  Sorsby  v.  Vance,  36  Miss.  564;  Jackson  v.  Hoover,  26  Ind.  511; 
Johnson  v.  M.  E.  Church,  4  Iowa,  180. 

3  Henshaw  v.  Foster,  9  Pick.  312 ;  Temple  v.  Mead,  4  Vt.  535. 

*  Kell  v.  Charmer,  23  Beav.  195 ;  Lucas  v.  James,  7  Hare,  419 ;  Myers  tv 
Vanderbilt,  84  Pa.  St.  510 ;  Philbrick  v.  Spangler,  16  La.  An.  46. 
5  In  re  Adams,  LR2P.&D.  367. 
716 


CH.  XXIII.]  TITLE   BY   DEVISE.  §    876 

§  876.  What  signing  is  necessary. —  The  English  Statute 
of  Wills  only  required  that  the  will  should  be  in  writing, 
and  did  not  make  it  necessary  for  the  testator  to  sign  or  to 
seal  the  instrument.  And,  although  it  may  be  customary 
in  some  localities  to  seal  a  will,  it  has  never  been  considered 
a  requisite  to  the  validity  of  the  will,  and  is  not  necessary, 
except  in  Vermont  and  New  Hampshire.1  But  the  Statute 
of  Frauds  of  29  Chas.  II.,  and  the  American  Statutes  of 
Wills  generally,  provide  that  the  will  shall  be  signed  or 
subscribed  by  the  testator.  If  the  statute  requires  it  to  be 
-signed,  the  signature  of  the  testator  in  any  part  of  the  instru- 
ment will  be  a  sufficient  signing.  But  if  the  statute  requires 
it  to  be  subscribed,  the  testator  must  sign  his  name  at  the 
bottom  or  end  of  the  will.  If  the  testator  is  unable  to  write 
he  may  make  his  mark,  and  this  mark  alone  will  be  a  proper 
signing  of  the  will,  although  it  is  customary  for  some  one, 
usually  an  attesting  witness,  to  write  his  name  around  or 
about  the  mark.2  In  Missouri,  if  the  name  is  written  by 
some  one,  it  must  be  by  an  attesting  witness,  and  the  attes- 
tation clause  must  contain  a  statement  that  the  testator's 
name  was  signed  at  his  request.3  In  the  same  manner  some 
one  may  guide  his  hand  in  writing  his  name  or  making  his 
mark,  when  he  is  too  weak  from  disease  to  write  without 
assistance,  and  he  requests  such  assistance.4     The  courts  go 

1  3  Washb.  on  Real  Prop.  507.  See  Avery  v.  Pixley,  4  Mass.  469 ;  Piatt  v. 
McCullough,  1  McLean,  69 ;  Williams  v.  Burnett,  Wright,  53 ;  Padfield  v. 
Padfield,  72  111.  322. 

2  Taylor  v.  Dening,  3  Nev.  &  P.  228 ;  s.  c,  nom.  Baker  v.  Dening,  8  Ad. 
Ell.  94 ;  Stevens  v.  Van  Cleve,  4  Wash.  C.  Ct.  262 ;  Van  Hanswydc  v.  Wiese, 
44  Barb.  494 ;  Jackson  v.  Jackson,  39  N.  Y.  153 ;  Main  v.  Eyder,  84  Pa.  St. 
217 ;  St.  Louis  Hospital  v.  Williams,  19  Mo.  609. 

3  McG-ee  v.  Porter,  14  Mo.  611;  St.  Louis  Hospital  v.  Williams,  19  Mo. 
609 ;  Northcutt  v.  Northcutt,  20  Mo.  266. 

*  Wilson  v.  Beddard,  12  Sim.  28;  Sprague  v.  Luther,  8  R.  I.  252;  Nicker- 
son  v.  Buck,  12  Cush.  332;  Jackson  v.  Van  Duysen,  5  Johns.  144;  Chaffee  v. 
Baptist  M.  C,  10  Paige  Ch.  85 ;  Flannery's  Will,  24  Pa.  St.  502;  Cozzen's 
Will,  61  Pa.  St.  196;  Higgins  v.  Carlton,  28  Md.  115;  Smith  v.  Dolby,  4  Harr. 
■350;  Ray  v.  Hill,  3  Strobh.  297;  Upchurch  v.  Upchurch,  16  B.  Mon.  102. 

717 


§    877  TITLE    BY   DEVISE,  [PART    III. 

still  further  and  hold  that  where  the  testator,  through  his 
feebleness,  is  unable  to  handle  the  pen,  he  may  request 
another  to  sign  his  name  for  him,  and  such  signature  will 
be  a  good  signing  of  the  will,  without  any  mark  by  the  tes- 
tator.1 

§  877.  Proper  attestation,  what  is.  —  The  English  Stat- 
ute of  Frauds  required  the  execution  of  the  will  to  be 
attested  and  subscribed  by  three  or  four  competent  and 
credible  witnesses.  This  general  provision  is  adopted  in  all 
the  States,  but  the  number  of  witnesses  required  varies. 
In  Connecticut,  District  of  Columbia,  Florida,  Georgia, 
Maine,  Maryland,  Massachusetts,  Mississippi,  New  Hamp- 
shire, New  Mexico,  South  Carolina,  Vermont,  three  wit- 
nesses are  required ;  while  two  are  sufficient  in  Alabama, 
Arkansas,  California,  Colorado,  Dakota,  Delaware,  Idaho, 
Illinois,  Indiana,  Iowa,  Kansas,  Kentucky,  Michigan,  [Min- 
nesota, Missouri,  Montana,  Nebraska,  Nevada,  New  Jersey, 
New  York,  North  Carolina,  Ohio,  Oregon,  Rhode  Island, 
Tennessee,  Utah,  Virginia,  West  Virginia,  and  Wisconsin. 
Witnesses  to  a  will  are  required  to  do  more  than  witnesses 
to  a  deed.  The  latter  are  only  called  upon  to  witness  the 
execution  of  the  deed.  But  witnesses  to  a  will  are  made 
judges  of  the  competency  of  the  testator,  and  in  any  subse- 
quent litigation  over  the  will,  involving  the  question  of  the 
capacity  of  the  testator,  they  are  in  effect  expert  witnesses, 
and  can  give  their  opinion  of  the  testator's  mental  capacity.3 

1  Asay  v.  Hoover,  5  Pa.  St.  21 ;  Main  v.  Ryder,  84  Pa.  St.  217 ;  Robins  r. 
Coryell,  27  Barb.  550 ;  Vernon  v.  Kirk,  SO  Pa.  St.  218 ;  Rosser  v.  Franklin,  6 
Gratt.  1 ;  Armstrong  v.  Armstrong,  29  Ala.  538;  Will  of  Cornelius,  14  Ark. 
675;  Abraham  v.  Wilkins,  17  Ark.  292;  McGee  v.  Porter,  14  Mo.  611 ;  Simp- 
son v.  Simpson,  27  Mo.  288 ;  Will  of  Jenkins,  43  Wis.  610 ;  Pool  v.  Buffum,  8 
Oreg.  438. 

2  1  Jarm.  Wills  (5th  Am.  ed.),  198  Am.  note. 

8  1  Greenl.   on  Ev.,  sect.  440;  Field's  Appeal,  36  Conn.  277;  Whitenack 
u.Stryker,  2  N.  J.  Eq.  9;  Heyward  v.  Hazard,  1  Bay,  335;  Withinton   t>. 
Withinton,  7  Mo.  589. 
718 


CH.  XXIII.]  TITLE    BY  DEVISE.  §    877 

It  is,  therefore,  generally  held  that  the  testator  must  publish 
his  will,  i.e.,  declare  to  the  witnesses  that  the  instrument 
before  them  is  his  last  will  and  testament,  and  without  some 
such  declaration  the  will  will  be  void.1  To  make  a  valid 
publication,  the  will  must  at  the  time  be  complete  in  all  its 
parts.2  Although  the  testator  need  not  sign  in  the  presence 
of  the  witnesses,3  they  must  sign  in  his  presence.4  What 
is  a  sufficient  "presence"  is  governed  largely  by  the  cir- 
cumstances. In  determining  this  question,  there  are  only 
two  elements  to  be  considered :  First,  were  the  witnesses 
at  the  time  of  signing  so  situated  that  the  testator  could  see 
them  ;  and  secondly,  was  he  in  a  conscious  state.  It  is  not 
necessary  that  the  testator  should  actually  see  the  signing, 

1  See  Cilley  v.  Cilley,  34  Me.  162 ;  Ela  v.  Edwards,  16  Gray,  91 ;  Swett  v. 
Boardman,  1  Mass.  2-58 ;  Brinckerhoff  v.  Remsen,  26  Wend.  325 ;  Rutherford 
v.  Rutherford,  1  Denio,  33;  Gilbert  v.  Knox,  52  N.  Y.  125;  Transue  v.  Brown, 
31  Pa.  St.  92 ;  Compton  v.  Mitton,  12  N.  J.  L.  70 ;  Combs  v.  Jolly,  3  N.  J.  Eq. 
625;  Sutton  v.  Sutton,  5  Harr.  459;  Beane  v.  Yerby,  12  Gratt.  239;  Verdier 
u.  Verdier,  8  Rich.  135;  Upchurch  v.  Upchurch,  16  B.  Mon.  102;  Raudebaugh 
v.  Shelley,  6  Ohio  St.  307 ;  Brown  v.  McAllister,  34  Ind.  375 ;  Dickie  v.  Car- 
ter, 42  111.  376;  Cravens  v.  Falconer,  28  Mo.  19;  Rogers  v.  Diamond,  13  Ark. 
474;  Buntin  v.  Johnson,  28  La.  An.  796.  In  Georgia  and  Pennsylvania  there 
seems  to  be  no  necessity  of  a  publication.  Webb  v.  Fleming,  30  Ga.  808 ;  Loy 
v.  Kennedy,  1  Watts  &  S.  396.     But  see  Transue  v.  Brown,  supra. 

2  Barnes  v.  Syester,  14  Md.  507 ;  Waller  v.  Waller,  1  Gratt.  454 ;  Jones  v. 
Jones,  3  Mete.  (Ky.)  266 ;  Chisholm's  Heirs  v.  Ben,  7  B.  Mon.  408. 

3  Provided  he  acknowledges  his  signature  and  requests  them  to  attest  it. 
Smith  v.  Codron,  2  Ves.  455 ;  Tilden  v.  Tilden,  13  Gray,  103;  Mickerson  v. 
Buck,  12  Cush,  332 ;  Adams  v.  Field,  21  Vt.  256 ;  Tarrant  v.  Ware,  25  N.  Y. 
425;  Baskin  v.  Baskin,  36  N.  Y.  416;  Compton  v.  Mitton,  12  N.  J.  L.  70; 
Will  of  Alspaugh,  23  N.  J.  Eq.  507;  Loy  v.  Kennedy,  1  Watts  &  S.  396 ; 
Higgins  v.  Carlton,  28  Md.  115;  Rosser  v.  Franklin,  6  Gratt.  1;  Tucker  v. 
Oxner,  12  Rich.  L.  141 ;  Thompson  v.  Davitte,  59  Ga.  472 ;  Turner  v.  Cook, 
86  Ind.  129 ;  Upchurch  v.  Upchurch,  16  B.  Mon.  102 ;  Allison  v.  Allison,  46 
111.  61 ;  Abraham  v.  Wilkins,  17  Ark  292. 

*  Roberts  v.  Welch,  46  Vt.  164;  Tappan  v.  Davidson,  27  N.  J.  Eq.  459; 
Lucas  v.  Parsons,  24  Ga.  640;  Parramore  v.  Taylor,  11  Gratt.  220;  Watson  v. 
Hipes,  32  Miss.  451 ;  Hill  v.  Barge,  12  Ala.  687 ;  Cravens  v.  Falconer,  28  Mo. 
19.  Contra,  Lyon  v.  Smith,  11  Barb.  124;  Carroll  v.  Norton,  3  Bradf.  291;. 
Abraham  v.  Wilkins,  17  Ark.  292. 

719 


§    875  TITLE    BY    DEVISE.  [PART    III. 

if  he  was  in  a  position  to  see  it  if  he  wanted  to.1  Not  only 
is  this  true,  but  if  the  testator  is  blind,  the  will  will  be 
properly  attested  if  the  witnesses  when  signing  were  in  such 
a  position,  that  the  testator  could  have  seen  them  if  he  had 
had  his  sight.2  And  it  is  not  even  necessary  that  the  testa- 
tor should  be  in  the  same  room  with  the  witnesses.  Attes- 
tation in  a  different  room,  although  presumptively  bad,  will 
be  good  if  the  testator  could  see  the  performance  of  the  act 
of  attestation.3  And  in  some  of  the  States  it  is  also  required 
that  the  witnesses  shall  sign  in  the  presence  of  each  other.4 
But  the  general  rule  is  that  they  may  sign  at  different  times, 
and  not  in  the  presence  of  each  other,  provided  they  all 
sign  in  the  presence  of  the  testator.5  It  is  usual  for  the 
will  to  contain  an  attestation  clause,  containing  a  declaration 
of  all  the  acts  done  in  compliance  with  the  statute,  and  which 
are  necessary  to  the  valid  execution  of  a  will.  No  particu- 
lar form,  expression  or  words  are  necessary  to  constitute 
an  attestation,  and  even  if  the  attestation  clause  is  omitted 
altogether  the  will  will  be  good,  for  the  meaning  of  the  wit- 

1  Boldry  v.  Parris,  2  Cush.  433 ;  Edelen  v.  Hardy,  7  Harr  &  J.  1 ;  Nock  ■■;. 
Nock,  10  Gratt.  106;  Bynum  v.  Bynum,  11  Ired.  L.  632;  Keynolds  v.  Reynolds, 
1  Speers,  253;  Wright  v.  Lewis,  5  Rich.  212;  Lamb  v.  Girtman,  33  Ga.  289; 
Hill  v.  Barge,  12  Ala.  687;  Rucker  v.  Lambdin,  12  Smed.  &  M.  230;  Watson 
v.  Pipes,  32  Miss.  431;  Howard's  Will,  5  B.  Mon.  199;  Ambree  v.  Weishaar, 
74  111.  109. 

2  In  re  Piercy,  1  Robt.  278 ;  Lewis  v.  Lewis,  6  Serg.  &  R.  489 ;  Weir  v. 
Fitzgerald,  2  Bradf.  42 ;  Wampler  v.  Wampler,  9  Md.  540 ;  Reynolds  v.  Rey- 
nolds, 1  Speers,  253. 

3  Newton  v.  Clarke,  2  Curt.  320;  Lamb  v.  Girtman,  33  Ga.  289.  See  also 
Sprague  v.  Luther,  8  R.  I.  252;  Neil  v.  Neil,  1  Leigh,  6;  Russell  v.  Falls,  3 
Harr.  &  McH.  457 ;  Brooks  v.  Duffell,  23  Ga.  441 ;  Graham  v.  Graham,  10 
Ired.  L.  219;  Watson  v.  Pipes,  32  Miss.  451 ;  Howard's  Will,  5  B.  Mon.  199; 
Ambree  v.  Weishaar,  74  111.  109.  In  one  case  attestation  in  a  different  house 
was  held  to  be  sufficient,  the  testator  being  in  a  position  to  see  the  act.  Casson 
v.  Dode,  1  Bro.  C.  C.  99. 

4  Blanchard  v.  Blanchard,  32  Vt.  62. 

5  Gaylor's  Appeal,  43  Conn.  82 ;  Cravens  v.  Falconer,  28  Mo.  19 ;  Flinn  v. 
Owen,  58  111.  Ill;  Hoffman  v.  Hoffman,  26  Ala.  535. 

720 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    878 

nesses'  signatures  may  be  established  by  parol  evidence.1 
But  it  is  always  advisable  to  insert  a  full  and  complete  at- 
testation clause,  for  the  declarations  in  the  clause  as  to  the 
proper  execution  of  the  will  raise  a  presumption  that  the 
will  was  properly  executed,  and  throws  the  burden  of  proof 
to  the  contrary  upon  the  party  contesting  the  will.2  Gen- 
erally the  witnesses  must  sign  below  the  attestation  clause 
at  the  end  of  the  will,  and  in  New  York  and  Kentucky  this 
is  required  by  statute.3  But  the  common  law  does  not  re- 
quire the  witnesses  to  sign  in  any  particular  place.4  If  the 
will  has  not  been  properly  attested  it  is,  of  course,  inoper- 
ative. But  where  a  codicil  is  subsequently  executed,  prop- 
erly attested,  confirming  the  prior  defective  will  expressly 
or  by  implication,  it  will  cure  the  defect,  and  make  the  will 
operative  from  the  date  of  the  codicil.5 

§  878.  Who  are  competent  witnesses.  —  Some  of  the 
State  statutes  require  the  witnesses  to  be  credible,  and  the 
others  that  they  shall  be  competent.  But  the  two  words  in 
this  connection  are  used  synonymously,  and  the  same  gen- 
eral rules  govern  in  all  the  States.  The  meaning  of  this 
requirement  is  that  the  witnesses  must  be  so  circumstanced, 
that  their  testimony  in  a  court  of  justice  will  be  competent 
to  establish  the  validity  of  the  will.     The  three  principal 

1  Hands  v.  James,  Comyn,  531 ;  Brice  v.  Smith,  Willes,  1 ;  Hitch  v.  Wells, 
lOBeav.  84;  Fry's  Will,  2  E.  I.  88;  Cla  v.  Edwards,  16  Gray,  91;  Chaffee 
o.  Baptist  M.  C,  10  Paige,  85;  Leaycraft  v.  Simmons,  3  Bradf.  35;  Lucas  v. 
Parsons,  24  Ga.  640.  See  contra,  Griffith  v.  Griffith,  5  B.  Mon.  511.  And  see, 
generally,  Osborn  v.  Cook,  11  Cush.  632;  Jackson  v.  Jackson,  39  N.  Y.  153; 
Fatheree  v.  Lawrence,  33  Miss.  585. 

2  Tappen  v.  Davidson,  27  N.  J.  Eq.  459. 

3  Coffin  v.  Coffin,  23  N.  Y.  9 ;  Peck  v.  Cary,  27  N.  Y.  9. 

*  In  re  Chamney,  1  Eobt.  757;  Eoberts  v.  Phillips,  4  Ell.  &  Bl.  450;  Mur- 
ray v.  Murphy,  39  Miss.  214. 

6  Ander*son  v.  Anderson,  L.  E.  13  Eq.  381 ;  Mooers  v.  White,  6  Johns.  Ch. 
360;  Van  Cortkndt  v.  Kip,  1  Hill,  590;  Wikoff's  Appeal,  15  Pa.  St.  281 ; 
Harvey  v.  Chouteau,  14  Mo.  587. 

46  721 


§    878  TITLE    BY    DEVISE.  [PART    III. 

causes  of  incompetency  are  mental  imbecility,  arising  either 
from  insanity  or  tender  age,  the  commission  of  crime,  and 
the  possession  of  an  interest  in  the  operation  of  the  will. 
The  first  two  causes  are  governed  by  the  general  rules  of 
evidence ,  and  are  explained  in  all  treatises  upon  the  law  of  evi- 
dence, and  will  need  no  special  elucidation  here.  The  most 
common  cause  of  incompetency  in  respect  to  wills  is  that  of 
interest.  The  common-law  rule  is  that  if  a  witness  to  the 
will  is  interested  in  it  as  a  legatee  or  devisee,  the  will  is 
void.  But  now  in  most  of  the  States  it  is  provided  by  stat- 
ute that  in  such  cases  the  will  be  good,  but  the  devise  or 
legacy  to  the  witness  will  be  void.  In  some  of  the  States 
the  devise  is  declared  absolutely  void,1  but  generally  the 
devise  is  void,  only  when  there  is  not  a  sufficient  number  of 
witnesses  without  the  disqualified  witness.2  In  others  of 
the  States  there  is  this  further  qualification,  that  where  the 
devisee  receives  no  more  by  the  will  than  he  would  have 
been  entitled  to  as  heir,  if  the  testator  had  died  intestate, 
he  is  a  competent  witness.  This  rule  is  either  laid  down  by 
statute,  or  is  a  consequence  of  the  rule  that  where  a  devisee 
is  heir  at  law  of  the  testator,  and  is  not  benefited  by  the 
will,  he  takes  as  heir  and  not  as  devisee.3  It  is  held  in  some 
of  the  States  that  a  witness,  incompetent  on  account  of  in- 
terest, may  become  competent  by  making  an  assignment  or 

1  Such  is  the  law  in  Rhode  Island,  New  York,  New  Jersey,  North  Carolina, 
South  Carolina,  Georgia,  Indiana,  Ohio  and  Oregon.  1  Jar.  on  Wills  (5th  Am. 
ed.),  189  Am.  note. 

2  This  is  the  rule  in  Massachusetts,  Michigan,  Missouri,  Minnesota,  New 
Hampshire,  Nebraska,  Virginia,  Vermont,  "Wisconsin,  Kentucky,  Kansas, 
Iowa,  Illinois,  Dakota,  Connecticut,  Colorado,  California,  "West  Virginia  and 
Arkansas.  1  Jar.  on  Wills  (5th  Am.  ed.),  189,  Am.  note.  In  New  York  the 
same  rule  has  been  adopted  by  the  courts.  Cromwell  v.  Woolly,  1  Abb.  Pr. 
442. 

s  Jackson  v.  Denniston,  4  Johns.  311;  Starr  v.  Starr,  2  Root,  363;  Fortune 
v.  Buck,  23  Conn.  1 ;  Ackless  v.  Seekright,  Breese,  76 ;  Croft  v.  Croft,  4  Gratt. 
103 ;  Moore  v.  Mc Williams,  3  Rich.  Eq.  10 ;  Cannon  v.  Setzler,  6  Rich.  471 ; 
Rucker  v.  Lambdin,  12  Smed.  &  M.  230;  Graham  v.  O'Fallon,  4  Mo.  601. 

722 


CH.  XXIII.]  TITLE    BY   DEVISE.  §    879 

release  of  his  interest.1  Not  only  is  the  witness  incompe- 
tent where  he  is  himself  a  devisee,  but  he  or  she  is  likewise 
incompetent  where  his  wife  or  her  husband,  respectively,  is 
a  devisee.2  But,  although  a  different  rule  is  observed  in 
some  of  the  States,3  it  is  generally  held  that  an  executor  or 
trustee  is  not  thereby  incapacitated  from  acting  as  a  witness 
to  the  will  which  appoints  him.4  If  the  witness  is  compe- 
tent at  the  time  of  the  attestation,  it  will  not  invalidate  the 
attestation  if  he  subsequently  becomes  incompetent  from 
any  cause.  He  is  only  required  to  be  competent  when  he 
attests  the  will.5 

§  879.  Who  may  prepare  the  will  —  Holographs.  — As 

a  general  proposition,  there  is  no  restriction  as  to  the  person 
who  may  prepare  and  write  the  will,  the  testator  or  some 
other  person  at  his  request.  When  the  will  is  in  the 
testator's  own  handwriting  it  is  called  a  holograph,  and  in 
Arkansas,  Kentucky,  Tennessee,  Virginia,  North  Carolina, 
Mississippi  and  Louisiana  it  is  provided  by  statute  that  no 

1  Kern  v.  Soxman,  16  Serg.  &  R.  316 ;  Hans  v.  Palmer,  21  Pa.  St.  296 
Deakins  v.  Hollis,  7  Gill  &  J.  311;  Shaffer  v.  Corbett,  3  Harr.  &  McH.  513 
Mixon  v.  Armstrong,  38  Texas,  296.     Contra,  Allison  v.  Allison,  4  Hawks,  141 

2  "Winslow  v.  Kimball,  25  Me.  493 ;  Sullivan  v.  Sullivan,  106  Mass.  474 
Jackson  v.  "Woods,  1  Johns.  163 ;  Huie  v.  Gunter,  3  Jones  L.  441 ;  Brayfield  v 
Brayfield,  3  Harr.  &  J.  208. 

3  Gilbert  v.  Gilbert,  23  Ala.  529;  Davis  v.  Rogers,  1  Houst.  44.  But  see 
Hawley  v.  Brown,  1  Boot.  494;  Vansant  v.  Boileau,  1  Binn.  444;  Gunter  v. 
Gunter,  3  Jones  L.  441 ;  Filson  v.  Filson,  3  Strobh.  288. 

*  Millay  v.  "Wiley,  46  Me.  230;  "Wyman  v.  Symmes,  10  Allen,  153;  Rich- 
ardson v.  Richardson,  35  Vt.  238 ;  Stewart  v.  Harriman,  56  N.  H.  25 ;  Com- 
stock  v.  Hadlyme,  8  Conn.  254 ;  McDonough  v.  Loughlin,  20  Barb.  238 ;  Frew 
w.  Clarke,  80  Pa.  St.  170;  Dorsey  v.  Warfield,  7  Md.  65;  Overton  v.  Overton, 
4  Dev.  &  B.  197 ;  Noble  v.  Burnett,  10  Rich.  505 ;  Meyer  v.  Fogg,  7  Fla.  292 ; 
Kelly  v.  Miller,  39  Miss.  17 ;  Orndoff  v.  Hummer,  12  B.  Mon.  619 ;  Murphy  v. 
Murphy,  24  Mo.  526 ;  Peralta  v.  Castro,  6  Cal.  354. 

5  Patten  v.  Tallman,  27  Me.  17;  Amory  v.  Fellowes,  5  Mass.  219;  Sears  v. 
Dillingham,  12  Mass.  358;  McLean  v.  Barnard,  1  Root,  402;  Higgins  v.  Carl- 
ton, 28  Md.  11") ;  Deakins  v.  Hollis,  7  Gill  &  J.  311 ;  Gill's  "Will,  2  Dana,  447 ; 
Rucker  v.  Lambdin,  12  Smed.  &  M.  230  ;  Mixon  v.  Armstrong,  38  Texas,  296. 

723 


§    880  TITLE    BY    DEVISE.  [PART    III. 

witnesses  are  required  to  attest  such  wills.1  A  will  drawn 
up  by  the  devisee  will,  nevertheless,  be  good.  But  a  sus- 
picion is  cast  upon  the  validity  of  the  will,  and  it  requires 
stronger  evidence  in  such  cases  to  rebut  the  charge  of  undue 
influence.  If  the  testator  is  of  feeble  mind  at  the  time,  and 
is  notoriously  under  the  influence  of  this  devisee,  the  will 
would  in  ordinary  cases  be  overthrown,  unless  the  strongest 
proof  of  fair  dealing  was  established  in  support  of  the  will.2 

§  880.  What  property  niay  be  devised. — It  may  be 
stated  as  a  general  proposition  that  every  interest  in  lands 
except  a  mere  possibility  may  be  the  subject  of  devise. 
This  would  include  incorporeal  as  well  as  corporeal  heredi- 
taments, estates  in  expectancy,  contingent  remainders,  where 
the  contingency  does  not  rest  upon  the  uncertainty  of  the 
remainder-man,  and  possibilities  coupled  with  an  interest, 
such  as  a  right  of  entry  to  defeat  an  estate  upon  condition, 
where  it.  is  attached  to  some  reversionary  interest.3  In 
Massachusetts  a  right  of  entry  in  an  estate  upon  condition 
may  be  devised,  whether  the  grantor  has  a  reversionary  in- 
terest or  not.  And  the  right  will  sometimes  pass  to  the 
devisee  under  a  residuary  devise  without  special  mention.4 
It  was  once  the  English  law,  and  at  an  early  day  the  law  in 

1  1  Jar.  on  Wills  (5th  Am.  ed.),  200,  Am.  note.  See  Harrison  v.  Burgess, 
1  Hawks,  384;  Brown  v.  Beaver,  3  Jones  L.  516;  Succession  of  Ehrenberg, 
21  La.  An.  280;  Hannah  v.  Peake,  2  B.  Mon.  133;  Hockerv.  Hocker,  4  Gratt. 
277;  Crutcher  v.  Crutcher,  11  Humph.  377;  Anderson  u.  Pryor,  10  Smed.  & 
M.  620. 

s  Barr  v.  Buttin,  1  Curt.  637 ;  Ingraham  v.  Wyatt,  1  Hagg.  388 ;  Delafield 
v.  Parrish,  25  N.  Y.  9 ;  Taylor  v.  Gardiner,  35  N.  Y.  559 ;  Day  v.  Day,  3  N.  J. 
Eq.  549 ;  Cramer  v.  Crumbaugh,  3  Md.  491 ;  Beall  v.  Mann,  5  Ga.  456 ;  Har- 
vey v.  Sullens,  46  Mo.  147. 

3  2  Washb.  on  Real  Prop.  562 ;  3  Washb.  on  Real  Prop.  522,  523 ;  4  Kent's 
Com.  511,  513;  Hayden  v.  Stoughton,  5  Pick.  528;  Brigham  v.  Shattuck,  10 
Pick.  306;  Austin  v.  Cambridgeport  Parish,  21  Pick.  215;  Steel  v.  Cook,  1 
Mete  281 ;  Den  v.  Manners,  20  N.  J.  L.  142 ;  Southard  v.  Central  R.  R.  Co.,  26 
N.  J.  L.  13 ;  Kean  v.  Roe,  2  Harr.  112. 

*  Hayden  v.  Stoughton,  5  Pick.  528 ;  Austin  v.  Cambridgeport  Parish,  21 
Pick.  215. 

724 


CH.  XXIII.]  TITLE    BY   DEVISE.  §    881 

this  country,  that  the  will  could  ouly  convey  the  real  prop- 
erty owned  by  the  testator  at  the  time  when  the  will  was 
executed.  But  now  in  England  and  in  most  of  the  States 
this  rule  has  been  changed  by  statute,  so  that  a  residuary 
or  general  devise  will  convey  whatever  prooerty  the  testator 
owned  at  the  time  of  his  death.1 

§  881.  A  competent  testator,  who  is. — All  persons  are 
competent  to  dispose  of  their  property  by  will,  who  do  not 
come  under  one  of  the  three  classes  of  persons  under  disa- 
bility. The  three  classes  are  infants,  femes  covert,  and  per- 
sons of  insane  mind.  These  persons  are  expressly  excluded 
by  the  old  English  Statute  of  Wills,  and  they  are  either 
expressly  excluded  by  the  American  statutes,  or  by  impli- 
cation, unless  the  statutes  expressly  direct  otherwise.  The 
general  rule  in  regard  to  infants  is  that  they  cannot  make  a 
devise  of  real  property  until  they  are  twenty-one  years  of 
age.  But,  in  some  of  the  States,  females  of  the  age  of 
eighteen  are  by  statute  declared  to  be  competent  to  make  a 
will.2  Although,  under  the  English  Statute  of  Wills  and 
the  earlier  American  statutes,  a  married  woman  was  not 
allowed  to  make  a  will  of  her  property,  yet  her  property 
could  be  settled  to  her  use  and  to  the  use  of  her  appointee 
by  will.  Her  appointee  would  take  the  legal  estate  by  the 
operation  of  the  Statute  of  Uses  upon  her  appointment. 
In  England,  and  in  all  the  States,  she  could  make  a  will  of 
equitable  estates  if  the  power  was  expressly  reserved  to  her, 
and  in  some  of  the  States,  as  well  as  in  England,  it  was  not 


1  3  Washb.  on  Real  Prop.  509.  This  is  the  statute  law  in  Alabama,  Cali- 
fornia, Colorado,  Connecticut,  Delaware,  Georgia,  Illinois,  Indiana,  Iowa, 
Kansas,  Kentucky,  Maine,  Maryland,  Massachusetts,  Minnesota,  Mississippi, 
Missouri,  Nebraska,  New  Jersey,  New  Hampshire,  New  York,  North  Carolina, 
Ohio,  Pennsylvania,  Rhode  Island,  South  Carolina,  Tennessee,  Texas,  Ver- 
mont, Virginia,  West  Virginia  and  Wisconsin.  1  Jar.  on  Wills  (5th  Am.  ed.); 
602,  C03,  Am.  note. 

-  2  V^ashb.  on  Real  Prop.  510. 

725 


§    881  TITLE    BY    DEVISE.  [PART    III. 

necessary  to  reserve  the  power.  She  possessed  it  as  a  nat- 
ural incident  of  her  separate  estate.1  In  the  United  States 
the  later  tendency  of  legislation  is  to  free  married  women 
from  all  disability  in  respect  to  the  management  of  her 
property.  In  some  States  there  is  the  broad  rule  of  law 
established,  that  a  married  woman  shall  have  in  respect  to 
her  property  all  the  powers  of  disposition  and  management 
as  a  single  woman.  Of  course,  in  those  States  she  can 
make  a  will  of  her  legal  as  well  as  her  equitable  estates,  and 
bar  whatever  contingent  interests  her  husband  may  have  in 
her  property,  including  his  tenancy  by  the  curtesy.2  But  in 
some  of  those  States  where  she  has  not  an  absolute  estate 
in  her  real  property  she  cannot  make  a  will  which  will  bar 
her  husband's  curtesy,  but  in  every  other  way  her  will  will 
convey  a  good  title  to  the  devisee.3  In  respect  to  what 
degree  of  sanity  is  necessary  to  make  a  competent  testator, 
it  is  difficult  to  make  any  concise  and  comprehensive  state- 
ment which  will  apply  to  every  case  which  may  arise ;  and 
a  detailed  presentation  of  the  law  would  require  more  space 
than  could  be  given  to  the  subject  in  an  elementary  treatise 
on  real  property.  The  inquiry  in  all  such  cases  is  :  Had 
the  testator  at  the  time  of  the  execution  of  the  will  suffi- 
cient mental  capacity  to  make  a  will,  not  whether  he  was 
sane  or  insane.4  "  He  must,  undoubtedly,  retain  sufficient 
active  memory  to  collect  in  his  mind,  without  prompting, 
particulars  or  elements  of  the  business  to  be  transacted, 
and  to  hold  them  in  his  mind  a  sufficient  length  of  time 
to  perceive  at  least  their  more   obvious  relations  to  each 

1  See  ante,  sect.  469,  note. 

2  3  Washb.  on  Real  Prop.  510.  See  Van  Wert  v.  Benedict,  1  Bradf.  114; 
Dkkinson  v.  Dickinson,  61  Pa.  St.  401;  Johnson  v.  Sharp,  4  Coldw.  45; 
Alosser  v.  Mosser's  Ex'ors,  32  Ala.  551 ;  Allen  v.  Little,  5  Ohio,  65 ;  In  re 
Fuller,  79  111.  99. 

s  Silsby  v.  Bullock,  10  Allen,  94;  Burroughs  v.  Nutting,  105  Mass.  228; 
Vreeland  v.  Ryno,  26  ST.  J.  Eq.  160;  Beals  v.  Storm,  26  N.  J.  Eq.  372. 

*  Forman's  Will,  54  Barb.  274;  Hopper's  Will,  33  N.  Y.  619;  Parish  Will 
Case,  25  N.  Y.  9 ;  McClintock  v.  Curd,  32  Mo.  411. 
726 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    882 

other,  and  to  be  able  to  form  some  rational  judgment  in 
relation  to  these."  i  If  a  man  has  sufficient  mental  capacity 
to  manage  his  business,  he  is  presumably  competent  to  make 
a  will.  But  this  is  not  a  sure  and  invariably  reliable  test. 
A  man  may  be  perfectly  sane  in  every  respect  except  one 
point ;  yet  if  his  mental  capacity  to  make  thai  particular 
will  is  affected  by  the  monomania,  the  will  will  be  void.2 
Or,  on  the  other  hand,  one  may  be  insane  on  every  other 
matter,  and  rational  enough  to  make  a  will ;  and  although 
it  would  be  difficult  in  such  cases  to  establish  the  sanity  of 
the  testator,  yet  if  it  was  proven,  the  validity  would  not  be 
affected  by  the  testator's  insanity  on  other  subjects.3  And 
so,  if  the  testator  is  only  suffering  from  a  monomania 
which  has  no  bearing  upon  her  judgment  and  capacity  to 
make  the  will,  the  validity  will  not  be  affected  thereby.4 
Thus,  the  subsequent  suicide  of  the  testator  raises  no  pre- 
sumption against  the  validity  of  the  will.5 

§  882.  Wlio  may  be  devisees — What  assent  necessary. — 

Any  person  may  be  a  devisee,  including  married  women, 
infants,  and  corporations,  which  are  not  prohibited  from 
taking  real  estate  by  devise.  Except  in  Pennsylvania,  the 
Statute  of  Mortmain  has  never  been  recognized  in  this  coun- 
try as  the  common  law.  But  in  New  York,  and  perhaps  in 
other  States,  corporations   can  take  by  devise  only  within 

1  Ch.  J.  Eedfield  in  Converse  v.  Converse,  21  Vt.  170. 

2  3  Washb.  on  Real  Prop.  512  ;  Hopper's  Will,  33  N.  Y.  619;  Alexander's 
Will,  27  N.  J.  Eq.  463;  Townshend  v.  Townshend,  7  Gill,  10;  Lucas  v.  Par- 
sons, 27  Ga.  593 ;  Denson  v.  Beazley,  34  Texas,  191. 

3  A  most  remarkable  case  is  that  of  Cartwright  v.  Cartwright,  1  Phill.  90, 
where  the  testatrix,  having  been  violently  insane  for  some  time,  was  permitted 
to  write  a  will,  and  her  hands  were  untied  for  that  purpose.  The  will  was  so 
extremely  rational  in  its  terms  and  provisions  that  the  court  held  it  to  have 
been  made  in  a  lucid  interval.  See  Bitner  v.  Bitner,  65  Pa.  St.  347 ;  Lucas  v. 
Parsons,  27  Ga.  593. 

*  Coghlan  v.  Coghlan,  1  Phill.  120;  Weir's  Will,  9  Dana,  434. 
5  Burrows  v.  Burrough,  1  Hagg.  109 ;  Brooks  v.  Barrett,  7  Pick.  94 ;  Dumeld 
v.  Morrows,  2  Harr.  375. 

727 


§    882  TITLE    BY   DEVISE.  [PART    III. 

the  limits  prescribed  by  statute.1  A  devise  in  prcesenti  takes 
effect  immediately  after  the  death  of  the  testator.  It  is 
necessary  that  the  devisee  should  then  be  in  esse,  in  order 
that  he  may  take  at  all.2  This  is  the  general  rule,  but  two 
notable  exceptions  are  now  very  generally  recognized.  It 
is  now  generally  held  that  a  devise  to  an  unborn  child  en 
ventra  sa  mere  will  be  good,  and  the  vesting  will  be  post- 
poned until  its  birth.3  A  devise  to  an  unincorporated  so- 
ciety, if  for  a  charitable  use,  will  be  good  and  vest  it  in  the 
society  when  it  is  subsequently  incorporated.4  But  no  one 
can  be  made  a  devisee  against  his  will.  The  title  only  vests 
in  him  when  he  assents  to  it.  The  law,  however,  presumes 
an  acceptance  in  ordinary  cases  where  the  devise  is  a  bene- 
ficial one.  And  it  seems  doubtful  that  an}"  disclaimer,  short 
of  a  deed  of  renunciation,  will  be  sufficient  to  vest  the  title 
in  the  heir  to  the  exclusion  of  a  subsequent  claim  of  the  de- 
visee.5 But  this  presumptive  acceptance  of  the  devisee  will 
not  be  sufficient  to  bind  the  devisee  by  the  charges  and  con- 
ditions upon  the  estate.  Generally  some  affirmative  act, 
such  as  entry  into  possession,  will  be  required  to  make  him 
liable.     But  if  he  enters  into  possession  of  the  estate,  he 

1  3  Washb.  on  Real  Prop.  512,  513. 

a  2  Washb.  on  Real.  Prop.  685 ;  3  Washb.  on  Real  Prop.  530 ;  Ex  parte 
Fuller,  2  Story,  327 ;  Ives  v.  Allen,  13  VU  629.  But  very  often  a  devise  to  a 
person  not  in  esse  will  be  construed  as  an  executory  devise,  if  such  a  construc- 
tion does  not  appear  to  be  contrary  to  the  intention  of  the  testator.  See  ante, 
sect.  533. 

*  Burdett  v.  Hopegood,  1  P.  Wms.  486 ;  Mogg  v.  Mogg,  1  Meriv.  654 ;  Pratt 
v.  Flamer,  5  Harr.  &  J.  10. 

*  Bartlett  v.  King,  12  Mass.  536 ;  Burr  o.  Smith,  7  Vt.  241 ;  Zimmerman  v. 
Anders,  6  Watts  &  S.  218 ;  Zeisweiss  v.  James,  63  Pa.  St.  465 ;  Am.  Tract  Soc. 
v.  Atwater,  30  Ohio  St.  77 ;  Estate  of  Ticknor,  13  Mich.  44.  Contra,  Whiter. 
Howard,  46  N.  Y.  144;  Owens  v.  Missionary  Soc,  14  N.  Y.  380.  And  see 
State  v.  Warren,  28  Md.  338 ;  Craig  p.  Secrist,  54  Ind.  419 ;  White  v.-  Hale,  2 
Coldw.  77.    See  also  post,  sect.  884. 

5  Co.  Lit.  Ill  a;  4  Kent's  Com.  533;  Doe  v.  Smyth,  6  B.  &  C.  112;    Wil- 
kinson v.  Leland,  2  Pet.  627 ;  Webster  v.  G-ilman,  1  Story,  499 ;  Ex  parte  Fuller, 
2  Story,  327  ;  Pickering  v.  Pickering,  6  N.  H.  120;  Tole  v.  Hardy,  6  Cow.  340; 
Bryan  v.  Hvre,  1  Rob.  (Va.)  94. 
728 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    883 

takes  it  subject  to  all  the  conditions  and  burdens  imposed 
by  the  testator.1 

§  883.  Devisee  and  devise  must  be  clearly  defined — - 
Parol  evidence.  — No  particular  formality  is  required  to  be 
observed  in  defining  the  subject-matter  of  a  devise,  the  only 
general  rule  being,  that  the  matter  must  be  stated  in  lan- 
guage sufficiently  clear  to  enable  the  courts  to  ascertain  the 
person  and  property  intended.  The  devise  will  not  be  void 
from  uncertainty,  as  long  as  the  property  devised  and  the 
.person  of  the  devisee  can  be  identified  by  the  description  in 
the  will.2  The  courts  always  endeavor  to  ascertain  the  in- 
tention of  the  testator,  if  possible,  and  for  that  purpose 
give  the  widest  latitude  possible  to  the  construction  of  wills, 
so  that  any  misconception  of  the  force  and  meaning  of  words 
will  not  prevent  the  will  from  taking  effect  or  give  it  a 
wrong  application.  Thus,  it  is  often  necessary  to  substitute 
one  word  for  another  in  a  will,  in  order  to  carry  out  the 
intention  of  the  testator.  It  is  very  common  to  substitute 
"  and"  for  "  or,"  and  vice  versa,  "  all  "  for  "  any,"  and 
the  like.  But  this  can  only  be  done  where  the  intention  is 
clearly  shown  on  the  face  of  the  will  to  be  contrary  to  the  or- 
dinary meaning  of  the  words  used.3  It  is  the  general  rule, 
subject  to  exceptions  to  be  mentioned  hereafter,  that  parol 
evidence  is  not  admissible  to  prove  the  intention  of  the  tes- 

1  Perry  v.  Hale,  44  N.  H.  65. 

2  Trustees,  etc.,  v.  Hart,  4  "Wheat.  1 ;  Bartlett  v.  King,  12  Mass.  537 ;  Sut- 
ton v.  Cole,  3  Pick.  232 ;  Button  v.  American  Tract  Soc,  23  Vt.  336 ;  Smith  v. 
Smith,  4  Paige,  271 ;  Hoge  v.  Hoge,  1  Watts,  214 ;  Newell's  Appeal,  24  Pa. 
St.  197 ;  Baldwin  v.  Baldwin,  7  N.  J.  Eq.  211 ;  Vansant  v.  Roberts,  3  Md.  119; 
Calhoun  v.  Furgeson,  3  Rich.  Eq.  160;  Alabama  Conference  v.  Price,  42  Ala. 
39 ;  St.  Louis  Hospital  v.  Williams,  19  Mo.  609 ;  Lepage  v.  McNamara,  5  Iowa, 
124. 

8  Story  Eq.  Jur.,  sect.  179 ;  Johnson  p.  Simcock,  7  H.  &  Norm.  344 ;  Jack- 
son v.  Blanchan,  6  Johns.  54 ;  Jackson  v.  Topping,  1  "Wend.  396 ;  Dexter  v. 
Gardner,  7  Allen,  243 ;  Holcomb  v.  Luke,  25  N.  J.  L.  605. 

729 


§    884  TITLE    BY   DEVISE.  [PART   III. 

tator.1  The  explanatory  rule,  which  has  been  recognized  as 
the  prevailing  test  since  the  days  of  Bacon,  is  that  parol  evi- 
dence is  not  admissible  to  explain  away  a  patent  ambiguity, 
while  it  may  control  and  remove  a  latent  ambiguity.  The 
ambiguity  may  concern  the  person  intended  to  take  or  the 
thing  devised.  The  distinction  between  latent  and  patent  am- 
biguity, in  respect  to  the  admissibility  of  parol  evidence,  lies 
in  a  rule  already  given,  that  the  intention  must  be  gathered 
from  the  will  itself.  If  it  is  a  patent  ambiguity  the  will 
does  not  express  any  certain  intention,  and  it  is,  therefore, 
void  from  uncertainty.  But  if  the  ambiguity  is  latent,  i.e., 
discovered  dehors  the  will,  there  would  be  no  ambiguity  as 
to  the  intention  of  the  testator  if  the  investigation  was  con- 
fined to  the  will  itself.  The  ambiguity,  arising  from  extra- 
neous facts,  may  in  like  manner  be  explained  away  without 
violating  the  rule  of  evidence,  that  parol  evidence  is  not 
admissible  to  contradict  a  writing.2 

§  884.  Devises  to  charitable  uses.  —  A  notable  exception 
to  the  rule,  requiring  the  devisee  to  be  definitely  ascertained, 
occurs  in  the  case  of  devises  to  charitable  uses.  It  will  be 
impossible  to  do  more  than  give  a  general  outline  of  this 
most  interesting  and  difficult  subject.     The  subject  has  been 

1  Farrar  v.  Ayres,  5  Pick.  407;  Barrett  v.  Wright,  13  Pick.  405;  Johnson  v. 
Johnson,  18  N.  H.  494;  Avery  v.  Chappell,  6  Conn.  270;  Jackson  v.  Lill,  11 
Johns.  201 ;  White  v.  Hicks,  33  N.  Y.  383;  Dey  v.  Dey,  19  N.  J.  Eq.  137; 
Kelly  v.  Kelly,  25  Pa.  St.  4C0 ;  Mordecai  v.  Jones,  6  Jones  Eq.  365 ;  Coffin  v. 
Elliott,  9  Eich.  Eq.  244 ;  Willis  v.  Jenkins,  30  Ga.  169 ;  Mitchell  v.  Walker, 
17  B.  Mon.  61 ;  Judy  v.  Williams,  2  Ind.  449;  Fitzpatrick  v.  Fitzpatrick,  36 
Iowa,  674;  Bradley  v.  Bradley,  24  Mo.  311;  Robinson  v.  Bishop,  23  Ark.  378; 
Love  v.  Buchanan,  40  Miss.  758. 

2  Miller  v.  Travers,  8  Bing.  244;  The  Lady  Franklin,  8  Wall.  325;  Shaw 
v.Shaw,  50  Me.  94;  Billings  v.  Billings,  10  Gush.  178;  Cabot  ».  Windsor,  11 
Allen,  346 ;  Pickering  v.  Pickering,  50  N.  H.  349 ;  Spencer  v.  Higgins,  22  Conn. 
521 ;  Mann  v.  Mann,  14  Johns.  1 ;  Hinneman  v.  Rosenbeck,  39  N.  Y.  98 ; 
Kicholls  v.  Williams,  22  N.  J.  Eq.  63  ;  Stokely  v.  Gordon,  8  Md.  496 ;  Love  v. 
Buchanan,  40  Miss.  758 ;  Stephens  v.  Walker,  8  B.  Mon.  600 ;  Worman  v. 
Teagarden,  2  Ohio  St.  380 ;  Grimes  v.  Harmon,  35  Ind.  246 ;  Penton  v.  Tefft, 
22  111.  36G ;  Fitzpatrick  v.  Fitzpatrick,  36  Iowa,  674. 

730 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    884 

discussed  and  treated  by  many  of  America's  most  emi- 
nent jurists,  and  yet  it  does  not  seem  to  be  definitely  settled 
in  all  its  details,  no  uniform  rule  having  been  adopted  or 
discovered,  which  would  be  reliable  and  applicable  in  all  the 
States.1  It  is  here  laid  down  that  gifts  to  charitable  uses 
will  be  sustained,  although  there  are  no  trustees  and  no  def- 
inite beneficiaries,  provided  the  general  intent  of  the  testator 
can  be  ascertained.  It  has  already  been  explained2  that 
courts  of  equity  will  never  suffer  a  trust  to  fail  for  the  want 
-of  a  trustee.  But  in  ordinary  trusts  the  cestui  que  trust 
must  be  definite  and  ascertained.  The  statute  of  43 
Eliz.  ch.  4,  enacted  that  where  a  devise  was  made  to  a 
charitable  use,  and  no  trustee  was  appointed,  the  court  of 
chancery  shall  have  the  power  to  appoint  trustees,  who  shall 
administer  the  trust  in  conformity  with  the  testator's  wishes, 
if  they  could  be  definitely  ascertained  and  carried  out, 
and  if  not,  then  as  nearly  as  possible,  the  latter  provision 
being  known  as  the  cy  pres  doctrine.  It  has  always  been  a 
matter  of  considerable  doubt  whether  the  provisions  of  this 
statute  constituted  a  part  of  the  American  jurisprudence, 
but  the  general  importance  of  this  question  has  been  dissi- 
pated by  the  almost  unanimous  conclusion  of  the  courts,  that 
the  statute  was  only  remedial  and  confirmatory  of  the  power 
which  the  court  of  chancery  had  previously  possessed  and 
exercised.3     The  uncertainty  which  in  private  trusts  would 

1  The  subject  constitutes  more  properly  a  part  of  the  general  subjects  of 
Equity  Jurisprudence  and  Uses  and  Trusts,  and  to  standard  works  on  these 
subjects,  together  with  Prof.  Theo.  W.  Dwight's  argument  in  the  Rose  Will 
Case,  published  in  book  form,  the  reader  is  referred  for  a  full  and  comprehen- 
sive discussion  of  it. 

2  See  ante,  sect.  508. 

3  Vidal  v.  Gerard,  2  How.  127 ;  Going  v.  Emery,  16  Pick.  107 ;  Baptist  Ass. 
v.  Hart,  4  "Wheat.  1 ;  Witman  v.  Lex,  17  Serg.  &  R.  88 ;  Green  v.  Dennis,  6 
Conn.  292;  Earle  v.  Wood,  8  Cush.  430;  Dexter  v.  Gardner,  7  Allen,  246; 
Jackson  v.  Phillips,  14  Allen,  577;  Burbank  v.  Whitney,  24  Pick.  152;  Pot- 
ter v.  Thornton,  7  R.  I.  263 ;  Bell  Co.  v.  Alexander,  22  Texas,  362 ;  Inglis  v. 
Trustees  of  Sailors'  Snug  Harbor,  3  Pet.   140.     Contra,  Owens  v.  Missionary 

731 


§    884  TITLE    BY    DEVISE.  [PART   III* 

invalidate  the  devise,  but  which  could  be  cured  under  the 
doctrine  of  charitable  uses,  may  refer  either  to  the  trustee, 
to  the  beneficiary,  or  to  the  object  of  the  devise.  In  all 
charitable  uses  the  beneficiaries  are  indefinite  and  uncertain, 
usually  consisting  of  a  class,  the  individuals  of  which  are 
constantly  changing.  Thus,  where  a  devise  is  made  to  a 
university,  or  to  found  one,  the  beneficiaries  are  the  stu- 
dents, who  from  time  to  time  enter  its  halls.  But  it  is  a 
general  rule  that  the  object  of  charity,  and  the  class  of  per- 
sons who  are  to  be  benefited  by  it,  should  be  sufficiently 
described  as  to  be  capable  of  identification.1  Where  there 
is  a  trustee  or  board  of  trustees  appointed  by  the  will  to 
administer  the  trust,  it  seems  to  be  the  universal  rule, 
adopted  alike  in  all  the  States,  that  such  a  charitable  trust 
will  be  sustained  if  the  class  of  beneficiaries  is  definitely 
described.  And  I  apprehend  that  a  greater  uncertainty  is 
permissible  in  such  cases  than  in  those  in  which  no  trustee 
has  been  appointed.2     And  where  the  trustees  are  authorized 

Soc,  14  N.  Y.  380 ;  Bascom  v.  Albertson,  34  N.  Y.  618.  But  whether  the 
court  of  chancery  had  original  jurisdiction,  or  it  was  first  conferred  upon  it 
by  the  statute  of  Elizabeth,  the  doctrine  of  Charitable  Uses  is  generally  recog- 
nized throughout  the  United  States.  See  Tappan  v.  Deblois,  45  Me.  122; 
Drew  ^.Wakefield,  54  Me.  295;  Burr's  Ex'ors  v.  Smith,  7  Yt.  241 ;  Dashiellc. 
Att'y-Gen.,  5  Har.  &  J.  392;  Gallego  v.  Att'y-Gen.,  3  Leigh,  450;  Beall  t>. 
Fox,  4  Ga.  404;  Am.  Bible  Soc.  v.  Wetmore,  17  Conn.  181;  Att'y-Gen.  «. 
Moore,  19  N.  J.  Eq.  503;  Trustees,  etc.,  v.  Zanesville  C.  &  M.  Co.,  9  Ohio,. 
203;  Gals  v.  Wilhite,  2  Dana,  170;  Grifiin  v.  Graham,  1  Hawks,  96;  Miller  v. 
Chittenden,  2  Iowa,  315. 

1  Wheeler  v.  Smith,  2  How.  55;  Perin  v.  Carey,  24  How.  465;  Loring  v. 
Marsh,  6  Wall.  337 ;  Bartlett  v.  King,  12  Mass.  537 ;  Att'y-Gen.  v.  Trinity 
Church,  9  Allen,  422;  Treat's  Appeal,  30  Conn.  113;  State  v.  GriflSth,  2  Del. 
Ch.  392  ;  Newson  v.  Clark,  46  Ga.  88 ;  Fink  v.  Fink,  12  La.  An.  301 ;  Wade  i>„ 
Am.  Col.  Soc,  7  Smed.  &  M.  695 ;  More  v.  Moore,  4  Dana,  354 ;  Miller  v. 
Teachout,  24  Ohio  St.  525 ;  DeBruler  v.  Ferguson,  54  Ind.  549;  Heuser  v.  Al- 
len, 42  111.  425 ;  Lepage  v.  McNamara,  5  Iowa,  146. 

2  Perry  on  Tr.,  sect.  732;  Beekman  v.  Bonsor,  23  N.  Y.  298;  Downing  t>. 
Marshall,  23  N.  Y.  366 ;  Going  v.  Emery,  16  Pick.  107 ;  Treat's  Appeal,  30 
Conn.  113;  Schultz's  Appeal,  80  Pa.  St.  396;  State  v.  Griflitb,  2  Del.  Ch.  392; 
Needles  v.  Martin,  33  Md.  609 ;  Bridges  v.  Pleasants,  4  Ired.  Eq.  26 ;  DeBruler 

732 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    884 

by  the  will  to  exercise  their  discretion  in  the  selection  of  the 
beneficiaries,  the  devise  has  in  many  cases  been  declared 
definite  and  valid,  while  it  would  probably  be  invalid,  if 
the  trustees  were  not  appointed  by  the  will.  Id  cerium  est, 
quod  cerium  reddi  potest.1  It  is  also  the  rule,  in  per- 
haps all  the  States  except  New  York,  that  where  the  object 
of  the  devise  is  certain  and  ascertainable,  it  will  be  sus- 
tained, although  there  are  no  ascertained  trustees  or  bene- 
ficiaries. The  courts  of  equity  have  the  power  in  such  cases 
to  appoint  trustees  to  carry  out  the  will  and  administer  the 
trust.2  Whether  the  English  doctrine  of  cy pres  is  applica- 
ble in  this  country  to  a  devise  to  a  charitable  use,  where  no 
trustee  is  appointed,  is  a  matter  of  some  doubt.  It  is  certain, 
however,  that  the  courts  would  not,  in  following  the  ten- 
dency of  the  English  courts,  go  so  far  as  to  authorize  funds, 
bequeathed  to  found  a  Jeivs'  synagogue,  to  be  transferred 
to  a  foundling  hospital,  as  was  done  in  one  case  by  an  Eng- 
lish court.3  And  if  the  doctrine  is  recognized,  it  is  applied 
in  subordination  to  the  general  rule,  that  the  courts  cannot 
supply  the  intention  of  the  testator  by  conjecture,  but  must 

v.  Ferguson,  54  Ind.  549;  Chambers?;.  St.  Louis,  29Mo._543;  Schmucker  v. 
Keel,  61  Mo.  592;  Lepage  v.  McNamara,  5  Iowa,  146;  Miller  v.  Chittenden,  2 
Iowa,  315. 

i  Treat's  Appeal,  30  Conn.  113 ;  Witman  v.  Lex,  17  Serg.  &  R.  88;  Beavers 
v.  Eilson,  8  Pa.  St.  327 ;  Pickering  v.  Shotwell,  10  Pa.  St.  23 ;  Att'y-Gen.  v. 
Jolly,  1  Rich.  Eq.  99.  But  there  must  be  some  definite  description  of  the  class 
of  persons  from  which  the  trustees  are  to  select.  "Wheeler  v.  Smith,  9  How. 
55;  Fontain  v.  Ravenel,  17  How.  369;  Levy  v.  Levy,  33  N.  T.  97;  Gallego  v. 
AU'y-Gen.,  3  Leigh,  450 ;  Miller  v.  Atkinson,  63  N.  C.  537. 

2  Preachers'  Aid  Soc.  v.  Rich,  45  Me.  552 ;  Bliss  v.  Am.  Bible  Soc,  2  Allen, 
334;  Sanderson  v.  "White,  18  Pick.  328;  Bull  v.  Bull,  8  Conn.  47;  Stone  v. 
Griffin,  3  Vt.  400;  McAllister  v.  McAllister,  46  Vt.  272;  McLain  v.  School 
Directors,  51  Pa.  St.  196 ;  Zeisweiss  v.  James,  63  Pa.  St.  465 ;  Dashiell  v.  Att'y- 
Gen.,  6  Har.  &  J.  392 ;  Walker  v.  Walker,  25  Ga.  420 ;  Mason  v.  M.  E.  Church, 
27  N.  J.  Eq.  47 ;  Williams  v.  Pearson,  38  Ala.  299 ;  Urmey  v.  Wooden,  1  Ohio 
St.  160 ;  Trustees,  etc.,  v.  Zanesville  C.  &  M.  Co.,  9  Ohio,  203 ;  Gass  v.  Wilhite, 
2  Dana,  170;  Griffin  v.  Graham,  1  Hawks,  96;  Miller  v.  Chittenden,  2  Iowa, 
315.  Contra,  Levy  v.  Levy,  33  N.  T.  97 ;  Bascom  v.  Albertson,  34  Iowa,  584 ; 
Downing  v.  Marshall,  23  N.  Y.  366. 

3  3  Washb.  on  Real  Prop.  521 ;  Story  on  Eq.  Jur.,  sect.  1169. 

733 


§    885  TITLE    BY    DEVISE.  [PART    III. 

act  in  strict  compliance  with  a  general  intent,  appearing  on 
the  face  of  the  will,  and  then  only  when  the  special  intent 
cannot  be  carried  out.1  Finally,  the  doctrine  of  perpetui- 
ties does  not  apply  to  charitable  uses.2 

§  885.  Lapsed  devises  —  What  becomes  of  them.  —  A 

will  speaks  from  the  death  of  the  testator,  and  all  the  ele- 
ments requisite  to  the  validity  of  the  devise  must  be  present 
and  existing  then,  in  order  that  th3  devise  may  take  effect. 
If  any  one  is  wanting,  as,  for  example,  if  the  devisee 
has  died  before  the  testator,  the  devise  lapses.  And  this  is 
the  case,  although  the  devise  is  expressly  limited  to  the  de- 
visee and  his  heirs.  The  word  "  heirs  "  in  this  connection 
is  construed  as  a  word  of  limitation,  and  the  heirs  cannot 
take  as  purchasers,  unless  it  is  the  plain  intent  of  the  testa- 
tor to  give  them  the  devise,  as  a  limitation  over  in  case  of 
the  death  of  their  ancestor.3  "But  unless  there  is  an  explicit 
declaration  of  the  person  or  persons  who  are  to  take  the 
devise  in  the  place  of  the  deceased  devisee,  no  declaration 
that  the  devise  shall  not  lapse  upon  the  death  of  the  devisee 
will  prevent  it  lapsing.4     A  devise  to  two  or  more  as  joint 

1  Fontain  v.  Ravenel,  17  How.  389 ;  Loring  v.  Marsh,  6  Wall.  337  ;  Harvard 
College  v.  Society,  etc.,  3  Gray,  283 ;  Saunderson  v.  White,  18  Pick.  333 ; 
Brown  v.  Concord,  33  N.  H.  285;  Beekman  v.  Bonsor,  23  N.  Y.  308;  Holmes 
v.  Mead,  52  N.  T.  344 ;  Philadelphia  v.  Girard,  etc.,  45  Pa.  St.  28 ;  Methodist 
Church  v.  Remington,  1  Watts,  226 ;  McAuley  v.  Wilson,  1  Dev.  Ch.  276 ; 
Cromie's  Heirs  v.  Louisville  Home  Soc,  3  Bush,  375. 

2  Jackson  v.  Phillips,  14  Allen,  550;  Odell  v.  Odell,  10  Allen,  8;  Hillyard 
v.  Miller,  10  Pa.  St  335;  Griffin  v.  Graham,  1  Hawks,  131 ;  Gass  v.  Wilhite,  2 
Dana,  183 ;  Miller  v.  Chittenden,  2  Iowa,  362.  Contra,  Levy  v.  Levy,  33  N.  Y. 
130;  Bascom  v.  Albertson,  34  N.  Y.  598. 

3  Long  v.  Watkinson,  17  Beav.  471  ;  Hinchliffe  v.  Westwood,  2  De  G.  &  S. 
216;  Kimball  v.  Story,  108  Mass.  382;  Armstrong  v.  Moran,  1  Bradf.  314; 
llawn  v.  Banks,  4  Edw.  Ch.  6G4;  Weishauptv.  Brehman,  5  Binn.  115;  Com- 
forts. Mather,  2  Watts  &  S.  450;  Dickinson  v.  Parvis,  8  Serg.  &E.  71 ;  Hand 
v.  Marcy,  28  N.  J.  Eq.  59 ;  Davis  v.  Taul,  6  Dana,  52. 

*  Williams  on  Ex.  loO^;  '1  Redf.  on  Wills,  163;  Aspinwall  v.  Duckworth, 
35  Beav.  307 ;  Hutchinson's  Appeal,  34  Conn.  300 ;  Craighead  r.  Given,  10 
Serg.  &  E.  351. 
734 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    885 

tenants  will  not  lapse  upon  the  death  of  one,  not  even  as  to 
his  share.  The  survivors  will  take  the  entire  estate.1  But 
the  share  of  one  co-tenant  in  a  devise  to  several  as  tenants 
in  common  lapses,  the  difference  in  the  rule  arising  out  of 
the  distinction  between  the  two  kinds  of  joint  estates.2  If 
the  devise  is  to  a  class,  the  individuals  of  which  are  chang- 
ing, such  as,  for  example,  a  devise  to  my  "  children,"  not 
naming  them  or  indicating  in  any  other  way  that  certain 
definite  individuals  were  intended,  those  individuals  of  the 
class  who  survive  the  testator  take  the  entire  devise,  and 
there  can  be  no  lapse  of  such  a  devise  unless  all  the  persons, 
who  could  be  included  in  the  class  described,  have  prede- 
ceased the  testator.3  And  even  where  the  members  of  the 
class  are  given,  it  has  been  held  that  there  will  be  no  lapse  of 
the  devise,  if  there  is  nothing  else  in  the  will  to  rebut  the  pre- 
sumption that  the  persons  named  are  to  take  as  a  class.4  It 
is  now  also  provided  in  a  number  of  the  States  that  upon  the 
death  of  the  devisee  before  the  testator,  if  he  be  a  son  or 
other  relative  of  the  testator,  his  lineal  heirs  will  take  the  es- 
tate in  his  place.     The  statutes  vary  in  detail,  some  confining 

1  Anderson  v.  Parsons,  4  Me.  486 ;  Doyle  v.  Doyle,  J03  Mass.  489 ;  De 
Camp  v.  Hall,  42  Vt.  483 ;  Bolles  v.  Smith,  39  Conn.  219 ;  Putnam  v.  Putnam, 
4  Bradf.  308;  Gross'  Estate,  10  Pa.  St.  360;  Stephens  v.  Miller,  24  N.  J.  Eq. 
358 ;  Craycroft  v.  Craycroft,  6  Har.  &  J.  54 ;  Luke  v.  Marshall,  5  J.  J.  Marsh. 
357. 

2  Upham  v.  Emerson,  119  Mass.  509;  Cummings  v.  Bramhall,  120  Mass. 
552  ;  Floyd  v.  Barker,  1  Paige,  480 ;  Van  Buren  v.  Dash,  30  N.  Y.  393 ;  Alli- 
son v.  Kurtz,  2  .Watts,  185 ;  Mason  v.  Trustees  Methodist  Church,  27  N.  J. 
Eq.  47 ;  Mebane  v.  Womack,  2  Jones  Eq.  293 ;  Gray  v.  Bailey,  42  Ind.  349. 

3  2  Kedf.  on  Wills,  170;  1  Jar.  on  Wills  (5th  Am.  ed.),  623;  Dimond  v. 
Bostick,  L.  K.  10  Ch.  358;  Schaffer  v.  Kettell,  14  Allen,  528;  Downing  v. 
Marshall,  23  N.  Y.  366 ;  Young  v.  Robinson,  11  Gill  &  J.  328;  Yeates  v.  Gill, 
9  B.  Mon.  206. 

*  Schaffer  v.  Kettell,  14  Allen,  528 ;  Stedman  v.  Priest,  103  Mass.  293 ; 
Warner's  Appeal,  39  Conn.  253 ;  Magaw  v.  Field,  48  N.  Y.  668 ;  Hoppock  v. 
Tucker,  59  N.  Y.  202;  Springer  v.  Congleton,  30  Ga.  977.  Contra,  Williams 
v.  Neff,  52  Pa.  St.  333 ;  Frazier  v.  Frazier,  2  Leigh,  C42.  See  also  Morse  v. 
Morse,  11  Allen,  36;  Todd  v.  Trott,  64  N.  C.  280;  Starling  v.  Price,  16  Ohio 
St  32. 

735 


§    885  TITLE    BY    DEVISE.  [PART    III. 

the  provisions  to  the  lineal  heirs  of  a  deceased  son  or  grand- 
son, others  extending  the  benefit  to  the  general  heirs  of  any 
relative  who  is  named  as  a  devisee,  while  others  go  to  the 
length  of  declaring  the  heirs  of  all  devisees  capable  of  taking 
in  their  ancestor's  place,  thus  abolishing  altogether  the 
doctrine  of  lapse  in  case  of  the  death  of  the  devisee.1  After 
determining  that  in  a  given  case  a  devise  has  lapsed,  there 
is  the  further  question,  in  whom  does  it  vest.  And  it  may 
be  stated  as  a  general  rule  everywhere,  in  the  absence  of 
statutory  provisions  to  the  contrary,  that  although  lapsed 
legacies  and  bequests  go  to  the  residuary  legatee,  lapsed 
devises  vest  in  the  heir  at  law.2  A  distinction  is  made  in 
the  English  law,  in  this  connection,  between  those  devises 
which  lapse  from  the  death  of  the  devisee  after  the  execu- 
tion of  the  will,  and  those  which  are  void  ab  initio  for  some 
cause,  such  as  the  death  of  the  devisee  before  the  execution 
of  the  will.  In  tha  latter  case  it  is  held,  that  the  lapsed  de- 
vise goes  to  the  residuary  devisee,  on  the  ground  that  since 
the  testator  intends  the  residuary  devisee  to  take  all  the 
property  not  previously  disposed  of,  the  testator  intends 
him  to  take  this  void  devise,  for  a  void  devise  does  not  dis- 
pose of  the  property.3  But  the  weight  of  authority,  in  fact 
all  the  authorities  except  the  case  just  cited,  reject  this 
distinction,  holding  that  the  attempt  to  make  a  specific  do- 
vise  indicates  the  intention  at  the  time  that  the  residuary 
devisee  is  not  to  take,  and  by  the  common  law  the  residuary 

1  3  Washb.  on  Real  Prop.  523 ;  1  Jar.  on  Wills  (5th  Am.  ed.),  638,  Am. 
note;  Moore  v.  Dimond,  5  R.  I.  121 ;  Sheets  v.  Grubb,  4  Mete.  (Ky.)  340. 

2  Doe  v.  Underdown,  "Willes,  293 ;  Doe  v.  Scott,  3  Maule  &  S.  300 ;  Hayden 
v.  Stoughton,  5  Pick.  528;  Austin  v.  Cambridgeport  Parish,  21  Pick.  224; 
Greene  v.  Dennis,  6  Conn.  292 ;  Remington  v.  Am.  Bible  Soc,  44  Conn.  672; 
James  v.  James,  4  Paige,  115;  Van  Cortlandt  v.  Kip,  7  Hill.  346;  Gill  v. 
Brouwer,  37  N.  Y.  549;  Lingan  v.  Carroll,  3  Har.  &  MoH.  333;  Adams  v 
Bass,  18  Ga.  130;  Starkweather  v.  Am.  Bible  Soc.,  72  111.  50. 

3  Doei>.  Sheffield,  13  East,  526;  Ferguson  v.  Hedges,  1  Harr.  521. 

736 


CH.  XXIII.]  TITLE    BY   DEVISE.  §    886 

devisee  only  takes  what  was  intended  for  him  at  the  time 
of  making  the  will.1 

§  886.  Revocation  of  wills.  —  Until  the  death  of  the  tes- 
tator the  will  is  ambu'atory  and  can  be  revoked  at  the  pleas- 
ure of  the  testator.  But  in  order  that  it  may  be  revoked, 
something  more  must  be  done  than  a  declaration  to  that  ef- 
fect. Revocation  may  be  express  or  implied.  An  express 
revocation  results  from  an  affirmative  act  of  the  testator, 
unimo  revocandi.  A  revocation  is  implied  from  some  act 
of  the  testator  inconsistent  with  the  continued  existence  of 
the  will,  but  not  expressly  intended  to  revoke  the  will, 
or  from  some  subsequently  occurring  circumstances  which 
the  law  has  declared  incompatible  with  the  will,  and  which 
in  consequence  works  a  revocation.  These  various  modes 
of  revocation  will  be  discussed  in  the  succeeding  para- 
graphs. The  only  exception  to  the  general  revocability 
of  wills  occurs  in  the  case  of  joint  or  mutual  wills.  Al- 
though these  wills  were  at  first  looked  upon  as  suspicious 
and  doubtful  instruments,  they  are  now  recognized  as 
valid.  Until  the  death  of  either  party,  the  will  is  re- 
vocable by  either,  although  such  revocation  may  work  a 
breach  of  a  valid  and  effective  compact.2  But  after  the 
death  of  one  of  the  testators  the  vesting  of  his  part  of  the 
will  is  considered  as  being  so  far  the  part  performance  of 
an  executory  contract,  as  to  prevent  the  revocation  of  the 
will  by  the  survivor.3 

Van  Kleek  v.  Dutch  Church,  20  Wend.  427 ;  Green  v.  Dennis,  6  Conn. 
292 ;  Brewster  v.  McCalPs  Devisees,  15  Conn.  297 ;  State  v.  Whitbank,  2  Harr. 
18;  Lingan  v.  Carroll,  3  Har.  &  McH.  333. 

2  Gould  v.  Mansfield,  103  Mass.  403 ;  Clayton  v.  Liverman,  2  Dev.  &  B. 
558;  Evans  v.  Smith,  28  Ga.  98;  Schumacher  v.  Schmidt,  44  Ala.  454.  In 
Breathitt  v.  Whitaker,  8  B.  Mon.  530,  it  was  held  that  a  joint  will  could  not  be 
revoked  at  all. 

3  Dufour  v.  Pereira,  1  Dick.  419;  Ex  parte  Day,  1  Bradf.  478;  Izard  v. 
Middleton,  1  Desau.  115;  Rivers  v.  Rivers,  3  Id.  190;  Schumacher  v.  Schmidt, 
44  Ala.  454. 

47  737 


§    888  TITLE    BY    DEVISE.  [PAKT    III. 

§  887.  Revocation  by  destruction  of  will.  — Any  burn- 
ing, cancellation,  or  other  destruction  of  the  instrument, 
although  such  destruction  be  only  partial,  will  be  sufficient 
to  revoke  a  will.  All  that  is  necessary  is  some  act  conclu- 
sive of  an  intention  to  destroy  it.1  But  the  act  of  destruc- 
tion must  have  been  done  animo  revocandi,  and  it  requires 
just  as  much  capacity  of  mind  to  revoke  a  will  as  it  does  to 
make  one.2  Not  only  is  the  intention  to  revoke  necessary 
to  give  to  an  act  of  destruction  the  effect  of  a  revocation, 
but  the  act  is  also  necessary.  A  mere  intention  to  revoke, 
without  doing  some  act  required  by  law  to  evince  that  in- 
tention, will  not  work  a  revocation;  and  this  is  also  true, 
although  the  execution  of  the  intention  to  destroy  the  will 
has  been  frustrated  by  the  fraudulent  or  other  interference 
of  a  third  person.3 

§  888.  Revocation  by  marriage  and  issue. — As  has  al- 
ready been  explained,  a  single  woman  could  at  common  law 
make  a  will,  but  a  married  woman  could  not.  In  conse- 
quence of  this  disability  upon  the  married  woman,  it  was 
held  that  the  will  of  a  single  woman  was  revoked  by  her 
subsequent  marriage.4    In  some  of  the  States  married  women 

1  Goods  of  Frazer,  L.  R.2P.&  D.  40 ;  Sweet  v.  Sweet,  2  Kedf.  451 ;  Avery 
v.  Pixley,  4  Mass.  460;  Evan's  Appeal,  58  Pa.  St.  244;  Johnson  v.  Brailsford, 
2  Nott  &  M.  272 ;  Bohannon  v.  Wolcot,  1  How.  (Miss.)  336. 

2  Laugbton  v.  Atkins,  1  Pick.  535 ;  Smith  v.  Wait,  4  Barb.  23 ;  Forman's 
Will,  54  Barb.  274 ;  Idley  v.  Bowen,  11  Wend.  227 ;  Burns  v.  Burns,  4  Serg. 
&  R.  295;  Smock  v.  Smock,  11  N.  J.  Eq.  156;  Shades  v.  Vinson,  9  Gill,  169; 
Ford  u.Ford,  7  Humph.  92;  Wright  v.  Wright,  5Ind.  389. 

s  Clark  v.  Smith,  34  Barb.  340;  Delafield  v.  Parrish,  25  N.  Y.  9;  Clingan  v. 
Mitcheltree,  31  Pa.  St.  25;  Dunlop  v.  Dunlop,  10  Watts,  153;  Mundy  v. 
Mundy,  15  N.  J.  Eq.  290;  Hise  v.  Fincher,  10  Ired.  139;  Boyd  v.  Cook,  3 
Leigh,  32;  Gains  v.  Gains,  2  A  K.  Marsh.  190;  Kent  r.  Mahaffey,  10  Ohio 
St.  204.  See  Card  v.  Grinman,  5  Conn.  164;  Blanchard  v.  Blanchard,  32  Vt 
62;  Heise  v.  Heise.  31  Pa.  St.  246;  Pryor  v.  Coggen,  17  Ga.  444;  Wright  c. 
Wright,  5  Ind.  389;  Runkle  v.  Gates,  11  Ind.  95:  Smiley  v.  Gambill,  2  Head, 
164. 

4  3  Washb.  on  Real  Prop.  539;  4  Kent's  Com.  527;  Forse  v.  Hembling,  4 
Rep.  61 ;  Cotter  v.  Layer,  2  P.  Wms.  624 ;  Morton  v.  Onion,  45  Vt.  145 ;  Frau- 
sen's  Appeal,  26  Pa.  St.  204. 
738 


CH.  XXIII.]  TITLE    BY   DEVISE.  §    888 

are  permitted  to  make  wills,  but  in  the  same  States  it  is 
generally  provided  that  the  husband  shall  be  heir  of  an  in- 
testate wife.  It  is,  therefore,  still  generally  enacted  by 
statute  in  those  States  that  the  subsequent  marriage  of  a 
testatrix  will  work  an  absolute  revocation  of  the  will.1  But 
the  marriage  of  a  man  does  not  at  common  law  revoke  his 
prior  will,  unless  he  has  issue.  The  wife  at  common  law 
could  not  be  the  heir  of  her  husband,  and  she  was  consid- 
ered amply  provided  for  in  her  dower.  There  was,  there- 
fore, no  change  effected  in  the  man's  circumstances  by  his 
marriage,  which  would  call  for  a  revocation  of  his  will,  until 
issue  was  born  to  him.2  But  in  a  great  many  of  the  States 
the  widow  is  now  by  statute  made  an  heir  to  the  husband,  and, 
although  there  are  statutes  in  some  of  these  States  expressly 
declaring  a  man's  will  revoked  by  his  subsequent  marriage, 
his  marriage  would  revoke  the  will  without  any  express  en- 
actment.3 But  the  subsequent  marriage  and  having  of  issue 
will  only  work  a  revocation,  as  a  general  rule,  where  the 
testator  has  not  provided  in  his  will  for  the  contingency  of 
his  marriage.  If  he  has  made  provisions  for  his  future  wife 
and  children,  the  will  will  stand.4  If  a  child  has  been  un- 
intentionally omitted  from  the  provisions  of  a  will,  it  is 
generally  provided  by  statute  that  the  will  will  be  revoked 
pro  tanto,  and  the  share  which  this  child  would  have  received 
of  his  father's  estate,  had  he  died  intestate,  will  be  given  to 

1  Statutes  of  this  character  are  to  be  found  in  Alabama,  Arkansas,  Califor- 
nia, Indiana,  Missouri,  New  York  and  Oregon.  1  Jar.  on  Wills  (5th  Am.  ed.), 
269,  Am.  note. 

2  Warner  v.  Beach,  4  Gray,  102 ;  Havens  v.  Van  den  Burgh,  1  Denio,  27 ; 
Tomlinson  v.  Toml'mson,  1  Ashm.  224;  McCullun  v.  McKenzie,  26  Iowa,  510; 
Carey  v.  Baughn,  36  Iowa,  542. 

3  See  Walker  v.  Hall,  34  Pa.  St.  483 ;  Tyler  v.  Tyler,  19  111.  151 ;  Am. 
Board  v.  Nelson,  72  111.  564 ;  Stokes  v.  O'Fallon,  2  Mo.  29. 

*  Wheeler  v.  Wheeler,  1  R.  I.  304;  Miller  v.  Phillips,  9  R.  I.  141 ;  Warner 
v.  Beach,  4  Gray,  162 ;  Bush  v.  Wilkins,  4  Johns.  Ch.  506 ;  Havens  v.  Van  den 
Burgh,  1  Denio,  27;  Deupree  v.  Deupree,  45  Ga.  415;  Yerby  v.  Yerby,  3 
Call,  334. 

739 


§    889  TITLE    BY   DEVISE.  [PART    III. 

it.  But  a  testator  may  disinherit  a  child  if  he  wishes,  and 
it  may  be  shown  by  parol  that  the  omission  of  his  name  was 
intentional.1  But  in  some  of  the  States  it  is  held  that  the 
intention  to  disinherit  cannot  be  shown  by  parol  evidence, 
and  that  the  intention  must  be  gathered  from  the  will.2 
There  are  similar  statutory  rules  in  most  of  the  States, 
providing  for  a  partial  revocation  of  a  will  in  favor  of  pos- 
thumous children.  But  in  all  the  cases  of  revocation  by 
marriage  and  birth  of  issue  the  rule  only  applies  to  wills, 
which  dispose  of  the  testator's  own  property.  It  does  not 
apply  to  wills  executed  under  a  power  of  appointment,  dis- 
posing of  property  which  the  wife  or  children  of  the  testator 
could  under  no  circumstances  inherit.3 

§  889.  Revocation  by  alteration  or  exchange  of  prop- 
erty. —  If  the  testator  disposes  of  the  property  devised  by 
alienation  inter  vivos,  it  will,  of  course,  revoke  the  devise.4 
And  this  is  also  the  rule  in  equity,  where  the  testator  has 
contracted  to  sell,  but  has  made  no  conveyance.5  But  al- 
though, under  the  old  English  rule  concerning  after-acquired 

1  Doane  v.  Lake,  32  Me.  268 ;  Wilson  v.  Fosket,  6  Mete.  400 ;  Bancroft  v. 
Ives,  3  Gray,  367;  Ramsdill  v.  Wentworth,  101  Mass.  125;  Buckley  v.  Gerard, 
123  Mass.  8  ;  Lorieux  v.  Keller,  5  Iowa,  196. 

2  Chace  v.  Chace,  6  R.  I.  407;  Guitar  v.  Gordon,  17  Mo.  408;  Bradley  v. 
Bradley,  24  Mo.  311 ;  Pounds  v.  Dale,  48  Mo.  270;  Estate  of  Garrand,  35  Cal. 
336. 

s  Loring  v.  Marsh,  6  Wall.  337 ;  Blagge  v.  Miles,  1  Story,  426 ;  Waterman 
v.  Hawkins,  63  Me.  156;  Warner  v.  Beach,  4  Gray,  162;  Wilder  v.  Thayer,  97 
Mass.  439;  Brush  v.  Wilkins,  4  Johns.  Ch.  506;  Havens  v.  Van  den  Burgh,  1 
Denio,  27 ;  Hargadine  v.  Pulte,  27  Mo.  423 ;  Burch  v.  Brown,  46  Mo.  441 ; 
Schneiders.  Koester,  54  Mo.  500;  Bresee  v.  Stilas,  22  Wis.  120;  Estate  of  Utz, 
43  Cal.  200. 

*  Bosley  v.  Bosley,  14  How.  390;  Carter  v.  Thomas,  4  Me.  341;  Hawes  v. 
Humphrey,  9  Pick.  350;  Brown  v.  Thorndike,  15  Pick.  388;  In  re  Van  Mickel, 
14  Johns.  324 ;  McNaughton  v.  McNaughton,  34  N.  Y.  201 ;  Balliett's  Appeal, 
14  Pa.  St.  451 ;  Brush  v.  Brush,  11  Ohio,  287 ;  Floyd  v.  Floyd,  7  B.  Mon.  290 ; 
Wells  v.  Wells,  35  Miss.  638. 

5  4  Kent's  Com.  527;  Darley  v.  Darley,  3  Wils.  6;  Walton  v.  Walton,  7 
Johns.  Ch.  258;  Kean's  Case,  9  Dana,  25. 

740 


CH.  XXIII.]  TITLE    BY    DEVISE.  §    890 

property,  the  rule  might  be  different,  it  is  now  held  that  the 
subsequent  conveyance  of  the  land  to  the  testator  will  re- 
vive the  devise  without  any  formal  republication.1  Not 
only  does  the  actual  conveyance  of  the  land  revoke  a  de- 
vise, but  it  has  also  been  held  that  an  unsuccessful  or  void 
conveyance  will  have  the  same  effect  as  indicating  an  inten- 
tion to  revoke  the  devise.2 

§  890.  Revocation  by  subsequent  will  or  codicil. — A 

will  may  also  be  revoked  by  a  subsequent  will  or  codicil. 
A  codicil  is  nothing  more  than  a  supplementary  will,  and 
only  revokes  the  will^ro  tanto.  A  subsequent  will  or  cod- 
icil may  revoke  the  prior  will  by  implication,  where  the  two 
are  inconsistent  and  cannot  stand  together;  or  the  testator 
may  in  his  subsequent  will  expressly  declare  the  prior  will 
revoked.  And  in  the  absence  of  an  express  revocation  the 
prior  will  will  be  revoked  only  as  to  those  provisions,  which 
are  inconsistent  with  the  dispositions  made  in  the  subsequent 
will  or  codicil.3  And  the  burden  is  upon  the  one  opposing 
the  earlier  will  to  show  that  the  testator  intended  to  revoke 
it.4  Where  the  prior  will  is  only  revoked  by  the  subse- 
quent will  by  implication  from  the  inconsistency  of  its 
clauses,  revocation  by  destruction  of  the  second  will  will 

1  Brown  v.  Brown,  16  Barb.  569;  Woolery  v.  Woolery,  48  Ind.  523. 

2  3  Washb.  on  Real  Prop.  538,  539;  4  Kent's  Com.  529.  This  rule  would 
hardly  be  followed  at  the  present  day.  The  revocation  by  exchange  or  sale 
of  the  property  devised  is  only  implied  from  the  act  of  sale ;  and  implications 
are  never  permitted  to  operate  beyond  what  it  is  made  necessary  by  the  act, 
which  gives  rise  to  the  implication.  If,  therefore,  an  attempted  conveyance 
fails,  it  should  not  operate  as  a  revocation  of  the  devise. 

8  Pickering  v.  Langdon,  22  Me.  413;  Derby  v.  Derby,  4  R.  I.  414;  Brantu. 
Wilson,  8  Cow.  66 ;  Van  Vechten  v.  Keator,  63  N.  Y.  52 ;  Den  v.  Van  Cleve, 
5  N.J.  L.  589;  Smith  v.  McChesney,  15  N.  J.  Eq.  359 ;  Bartholomew's  Appeal, 
75  Pa.  St.  169 ;  Boudinot  v.  Bradford,  2  Dall.  266 ;  Petters  v.  Petters,  4  Mc- 
Cord,  151 ;  Brownfield  v.  Wilson,  78  111.  467. 

*  Richards  v.  Queen's  Proctor,  18  Jur.  540 ;  Leslie  v.  Leslie,  6  Ired.  Eq.  332. 

741 


§    891  TITLE    BY    DEVISE.  [PART    III. 

revive  the  prior  will  without  any  former  republication.1 
But  if  the  prior  will  has  been  cancelled,  or  is  revoked 
by  express  declaration,  a  republication  as  formal  as 
the  original  execution  is  generally  necessary  to  revive 
it.2  But  it  has  been  generally  held  that  the  execution  of 
a  codicil,  containing  an  express  reference  to  the  prior  will, 
is  a  sufficient  republication  to  bring  the  prion-  will  into 
active  operation  again  from  the  time,  when  the  codicil  was 
executed.3 

§  891.  Contingent  wills. — In  connection  with  the  sub- 
ject of  revocation,  it  may  be  well  to  state  something  con- 
cerning contingent  wills.  A  will  can  be  made  to  take  effect 
or  to  fail  upon  the  happening  of  the  contingency.  A  com- 
mon case  is  a  will  made  expressly,  to  take  effect  only  upon 
the  death  of  the  testator  away  from  home  or  while  on  a 
journey.  If  the  testator  survives  the  contingency,  the  will 
cannot  be  admitted  to  probate.4 

1  4  Kent's  Com.  528;  3  Washb.  on  Real  Prop.  540;  Brown  v.  Brown,  8  E. 
&  B.  876 ;  Wood  v.  Wood,  L.  R.  1P.&D.  309 ;  Bohannon  v.  Walcot,  1  How. 
(Miss.)  336.  In  New  York,  Ohio,  Indiana,  Missouri  and  Arkansas  the  prior 
will  can  only  be  revived  by  republication  in  any  case.  ,  3  Washb.  on  Real  Prop. 
642,  note. 

2  James  v.  Marvin,  3  Conn.  576 ;  Colvin  v.  Warford,  20  Md.  357 ;  Rudisiles 
v.  Rodes,  29  Gratt.  147;  Marsh  v.  Marsh,  3  Jones  L.  77 ;  Bohannon  v.  Walcot, 
1  How.  (Miss.)  336;  Beaumont  v.  Keim,  60  Mo.  28.  Contra,  Lawson  v.  Mor- 
rison, 2  Dall.  286.     See  Taylor  v.  Taylor,  2  Nott  &  M.  482. 

s  Havens  v.  Foster,  14  Pick.  534;  Mooers  v.  White,  6  Johns.  Ch.  375;  Van 
Cortlandt  v.  Kip,  1  Hill,  690;  Jones  v.  Jones,  1  Gill,  395;  Rose  v.  Drayton,  4 
Rich.  Eq.  260;  Jones  v.  Shewmake,  35  Ga.  151;  Stover  v.  Kendall,  1  Coldw. 
557;  Barkers.  Bell,  46  Ala.  216;  Armstrong  v.  Armstrong,  14  B.  Mon.  333; 
Duncan  v.  Duncan,  23  111.  364 ;  Harvey  v.  Chouteau,  14  Mo.  587 ;  Payne  v. 
Payne,  18  Cal.  291. 

*  In  re  Porter,  L.  R.  2  P.  &  D.  22 ;  Lindsay  v.  Lindsay,  L.  R.  2  P.  &  D. 
459;  Tarver  v.  Tarver,  9  Pet.  174;  Turner  v.  Soott,  51  Pa.  St.  126;  Ritter's 
Appeal,  59  Pa.  St.  9;  Wagner  v.  McDonald,  2  Har.  &  J.  346;  Jacks  v.  Hen- 
derson, 1  Desau.  543 ;  Maxwell,  3  Mete.  (Ky.)  101.  But  see  contra,  Damon  v. 
Damon,  8  Allen,  192. 
742 


CH.    XXIII.]  TITLE    BY   DEVISE.  §    892 

§  892.  Probate  of  will.  —  In  the  States  of  this  country, 
different  from  the  old  English  law,  it  is  provided  that  wills 
of  real  property  shall  be  admitted  to  general  probate,  and 
when  they  have  been  admitted,  and  placed  on  record,  the 
probated  will  becomes  conclusive  evidence  of  its  own  proper 
execution  in  any  case  arising  collaterally  in  another  court.1 
It  is  also  provided  by  the  Statutes  of  Probate  that  a  copy 
of  the  will  certified  by  the  judge  of  probate  or  his  clerk  is 
competent  evidence  of  its  contents.  The  old  English  law 
only  provided  for  the  probate  of  wills  of  personal  property. 

1  3  Washb.  on  Real  Prop.  508 ;  1  Greenl.  on  Ev.,  sect.  618. 

743 


INDEX. 


[  The  references  in  index  are  to  sections.] 

ABANDONMENT  OF  TITLE,  739-741. 
general  discussion,  739. 

of  title  by  adverse  possession,  740. 
by  surrender  of  deed,  741. 

ACCEPTANCE, 

of  deed,  when  presumed,  812. 

dedication  to  public,  611. 

trust  necessary,  £10. 

rent  creates  a  tenancy  from  year  to  year,  216. 

ACCOUNTING, 

between  mortgagor  and  mortgagee,  353. 

ACCEETION  AND  ALLUVION, 

definition  of,  685,  686. 

in  whom  is  the  title  to,  685,  686. 

ACCUMULATION  OF  PROFITS, 
how  far  permissible,  544. 

ACKOWLEDGMENT  OF  DEEDS, 

when  required,  810. 
requisites,  certificate  of,  810. 
certificate,  conclusive  of  what,  810. 
by  married  women,  810. 

ACQUISITION, 

title  by  original,  681-741. 

ACT  OF  GOD, 

when  rent  is  discharged  by,  79. 

when  performance  of  condition  excused  by,  274. 

when  waste  by,  excusable,  79. 

ADULTERY, 

of  husband,  effect  upon  curtesy,  110. 
of  wife,  effect  upon  dower,  128. 

745 


i  46  INDEX. 

ADVANCEMENT, 
defined,  672. 

intention  of  donor  controls,  672. 
how  manifested  and  proved,  672. 

ADVERSE  POSSESSION, 
denned,  693. 
effect  upon  title,  693. 
dispossession  distinguished  from,  694. 
essentials  of,  695-699. 
must  be  visible  or  notorious,  696,  697. 

distinct  and  exclusive,  698. 

hostile  and  adverse,  699. 
when  entry  was  lawful,  700. 
title  by,  how  defeated,  703. 

how  made  absolute,  704. 
nature  of  title  by,  693. 
when  it  begins,  693. 

AFFINITY, 

relation  of,  665. 

AGENT.    See  Attorney. 

ALIEN, 

capacity  of,  to  acquire  real  property  by  descent,  674. 
by  purchase,  797. 

ALIENATION, 

power  of,  historical  outline,  22,  24. 
invariable  incident  to  a  fee,  38,  275. 
in  respect  to  estate  for  life,  275. 

estate  for  years,  182. 

estate  from  year  to  year,  214. 

tenancy  at  will,  214. 

mortages,  see  assignment. 

trust  estates,  448,  506. 
effect  of,  by  husband  upon  dower,  126. 
when  wife  is  capable  of  making,  794. 
effect  of,  by  wife  upon  curtesy,  110,  794. 

ALTERATIONS  IN  DEEDS, 
effect  of,  790. 

legal  presumptions  as  to  time  when  made,  790. 
how  they  may  be  noted,  790. 

APPURTENANT, 
defined, 842. 
what  things  pass  as,  842. 


INDEX.  747 


ASSIGNMENT, 

of  dower,  134-137,  144,  145. 

executory  devise,  530. 

lease,  182. 

mortgage,  328-330. 

rent,  with  and  without  reversion,  645. 

reversion,  386. 

vendor's  lien,  294. 

ATTESTATION, 

of  deeds,  when  necessary,  809 

requisites  of,  809. 
of  wills,  877,  878. 

ATTORNEY, 

power  of,  to  make  deed,  805. 
by  married  women,  806. 
(See  Powers.) 

BARGAIN  AND  SALE,  776,  777. 
BASE  FEE,  44. 

BASTARDS, 

cannot  inherit  at  common  law,  674. 
statutory  changes  in  common  law,  674. 

BETTERMENTS,  702. 

BOUNDARIES, 

elements  of,  830. 

monuments,  natural  and  artificial,  831- 

artificial  monuments  in  United  States  surveys,  832. 

non-navigable  streams,  833. 

navigable  streams,  834. 

ponds  and  lakes,  $36. 

highways,  837. 

walls,  trees,  fences,  etc.,  838. 

BRIDGES.    See  Franchises. 

BUILDINGS, 

included  in  lands,  2. 

CANCELLATION, 
of  deed,  741. 
of  will,  887. 

CHARITABLE  USES, 
when  valid,  884. 
devise  to,  when  valid,  884. 


748  INDEX. 

CHILD, 

birth  of,  requisite  to  curtesy,  101 . 
illegitimate,  cannot  inherit,  when,  674. 
in  ventre  sa  mere,  when  considered  as  born,  673. 
posthumous,  can  now  inherit,  673. 

co:.::,ion, 

rights  of,  591-593. 

CONDITION, 

in  conveyances,  846,  863. 

in  leases,  191. 

in  devises,  891 

estate  upon,  271-281. 

express  or  implied,  271. 

precedent  or  subsequent,  271,  273. 

effect  of  condition  upon  estate,  271. 

how  estate  affected  by  breach  of,  273,  277. 

when  void,  274,  275. 

impossibility  of  performance,  274. 

illegality  of  performance,  275. 

how  estate  affected  by  void,  274. 

time  of  performance,  276. 

estate  upon,  distinguished  from  trusts,  280. 

when  performance  excused,  274,  275,  278. 

when  forfeiture  is  relieved  by  courts,  279. 

who  can  enforce  forfeiture,  277. 

effect  of  waiver  of  performance  upon  the,  278. 

what  acts  constitute  a  waiver,  278. 

in  an  escrow,  812. 

CONDITIONAL  LIMITATIONS, 
denned,  281. 
distinguished  from  condition  and  limitation,  281 , 

CONFIRMATION, 

a  common  law  conveyance,  769. 

CONSANGUINITY, 
relation  by,  G65. 
kinds  of,  666,  667,  668. 
how  degrees  of  relation  are  computed,  669. 
by  what  law  is  it  governed,  664. 

CONSIDERATION, 

when  requisite  to  deeds,  801. 

when  requisite  to  create  a  use,  444,  783. 

acknowledged  under  seal,  an  estoppel,  444,  783. 

CONTRIBUTION, 

between  parties  to  mortgage,  370-374. 


INDEX.  749 


COPARCENARY, 
estates  in,  241. 

CORPORATIONS, 

can  take  real  property  by  deed,  when,  797. 
can  take  real  property  by  devise,  when,  882. 

COVENANTS, 

defined  and  classified,  185,  849. 

of  seisin  and  right  to  convey,  850. 

breach  of  covenant  of  seisin,  851 . 

against  incumbrances,  852. 

breach  of  the  same,  853. 

for  quiet  enjoyment,  187,  854. 

of  warranty,  855,  856. 

the  feudal  warranty,  857. 

special  covenants  of  warranty,  858. 

implied,  186,  189,  859. 

actions  on  covenants  of  warranty,  860,  861. 

running  with  the  land,  190,  863. 

when  breach  of  covenant  works  forfeiture,  864. 

COVERTURE, 

estate  during,  90. 

how  husband's  rights  in  wife's  lands  may  be  barred,  91. 

how  prevented  from  attaching,  92. 

restrictions  upon  alienation  of  wife's  property,  93. 

statutory  changes  in  estate  during,  94. 

CURTESY, 

defined,  essentials  of,  101. 

marriage,  102. 

estate  of  inheritance  in  wife,  103. 

in  fees  determinable;  104. 

in  equitable  estates,  105. 

seisin  in  wife  during  coverture,  106. 

in  reversion,  107. 

necessity  of  issue,  108. 

liability  for  debts  of  husband,  109. 

how  estate  may  be  defeated,  110. 

CUSTOM, 

easement  created  in  favor  of  public  by,  611. 

DATE, 

in  deed,  812. 

DEED, 

defined,  786. 

what  are  requisites  of,  787-819. 


750  INDEX. 

DEED  —  Continued. 

a  sufficient  writing,  what  constitutes,  788,  789. 

alterations  and  interlineations,  790. 

proper  parties,  the  grantor,  701. 

infants  and  insane  grantors,  792. 

ratification  and  disaffirmance,  793. 

deeds  by  married  women,  794. 

a  disseisee  cannot  convey,  795. 

effect  of  fraud  and  duress  upon,  796. 

proper  grantees,  797. 

proper  parties  named  in  the  deed,  798. 

a  thing  to  be  granted,  799. 

what  can  be  conveyed  by,  799,  800. 

consideration,  when  requisite  to,  801 . 

voluntary  and  fraudulent  conveyances  by,  what  are,  802. 

operative  words  of  conveyance,  803. 

execution  of,  what  constitutes,  804. 

power  of  attorney  to  execute,  805. 

power  of  attorney  by  married  women,  806. 

signing,  807. 

sealing,  808. 

attestation,  809. 

acknoAvledgment  or  probate,  810. 

reading  of,  when  necessary,  811. 

delivery  and  acceptance  of,  812. 

what  constitutes  a  sufficient  delivery,  813. 

delivery  to  stranger,  when  assent  of  grantee  presumed,  814. 

escrows,  815. 

registration  or  record  of,  816. 

to  whom  and  of  what  is  record  constructive  notice,  827. 

from  what  time  does  priority  take  effect,  818. 

what  constitutes  sufficient  notice  of  title  —  possession,  819. 

poll  and  of  indenture,  824. 

component  parts  of  a,  825-84G. 

the  premises,  826. 

description  —  general  statement,  827. 

contemporaneous  exposition,  828. 

falsa  demonstratio  non  nocet,  829. 

elements  of  description,  830. 

monuments,  natural  and  artificial,  831. 

artificial  monuments  in  United  States  surveys,  832. 

non-navigable  streams,  833. 

navigable  streams,  834. 

what  is  a  navigable  stream,  835. 

ponds  and  lakes,  83G. 

highways,  807. 

walls,  trees,  fences,  etc.,  838. 


INDEX.  751 

DEED  —  Continued. 

courses  and  distances,  839. 

quantity,  840. 

reference  to  other  deeds,  maps,  etc.,  for  description,  841.. 

appurtenances,  842. 

exception  and  reservation,  843. 

habendum,  844. 

reddendum,  845. 

conditions,  84G. 

covenants  in,  849-863. 

covenants  denned,  849. 

classes  of  covenants,  849. 

covenants  of  seisin  and  right  to  convey,  850. 

breach  of  covenant  of  seisin,  851. 

covenant  against  incumbrances,  852. 

breach  of  covenant  against  incumbrances,  853 . 

covenant  of  quiet  enjoyment,  854. 

covenant  of  warranty,  855. 

character  of  covenant  of  warranty,  856. 

the  feudal  warranty,  857. 

special  covenants  of  warranty,  858. 

implied  covenants,  859. 

who  may  maintain  actions  on  covenants  of  warranty,  860. 

what  damages  may  be  recovered  on  covenants  of  warranty,  861. 

what  covenants  run  with  land,  862. 

when  breach  of  covenant  works  forfeiture,  863 

DEDICATION, 

of  lands  for  public  highways,  611. 
acceptance  by  public,  611. 
rights  acquired  by  public,  611. 

DELIVERY, 

of  deed,  812-815. 
what  constitutes,  813. 
absolute  and  conditional,  814. 
escrow,  815. 

DESCENT, 

title  by,  663-675. 

definition  of  title  by,  663. 

what  law  governs,  664. 

consanguinity  and  affinity,  665. 

how  lineal  heirs  take,  666,  667. 

collateral  heirs,  668. 

how  degree  of  collateral  relationship  is  computed,  669. 

ancestral  property,  670. 

kindred  of  the  whole  and  half  blood,  671 . 


752  INDEX. 

DESCENT  —  Continued. 

advancement  —  hatchpot,  672. 
posthumous  children,  673. 
illegitimate  children,  674. 
alienage,  a  bar  to  inheritance,  675. 

DEVISE, 

title  by,  872-891. 

definition  and  historical  outline,  872. 

by  what  law  governed,  873. 

requisites  of  a  valid  will,  874. 

a,  sufficient  writing,  875. 

what  signing  is  necessary,  876. 

proper  attestation,  877. 

who  are  competent  witnesses,  878. 

who  may' prepare  the  will,  holographs,  879. 

what  property  may  be  devised,  880. 

&  competent  testator,  who  is,  881. 

who  may  be  devisees,  what  assent  necessary,  882. 

•devisee  and  devise  must  be  clearly  defined  —  parol  evidence,  383. 

devise  to  charitable  uses,  884. 

lapsed  devise,  what  becomes  of,  885. 

revocation  of  will,  886. 

revocation  of  will  by  destruction,  877( 

revocation  of  will  by  marriage  and  issue,  888. 

revocation  of  will  by  alteration  or  exchange  of  property,  889. 

revocation  of  will  by  subsequent  will  or  codicil,  890. 

probate  of  will,  891. 

DISSEISEE, 

cannot  convey,  795. 

DISSEISIN, 

defined,  693. 

distinguished  from  dispossession,  694. 

what  title  gained  by,  693. 

DIVORCE, 

effect  upon  curtesy,  110. 

effect  upon  dower,  128. 

effect  upon  husband's  estate  during  coverture,  91, 

DOWER,  115-148. 

defined  and  explained,  115. 

in  what  estates,  116. 

in  equitable  estates,  117. 

in  lands  of  trustee,  118. 

in  mortgage,  119. 

in  proceeds  of  sale,  120. 

seisin  in  husband  during  coverture,  121. 


INDEX.  753 


DOWER—  Continued. 

defeasible  and  determinable  seisin,  122. 

duration  of  the  seisin,  123. 

instantaneous  seisin,  124. 

legal  marriage,  125. 

lost  or  barred  by  act  of  husband  (?),  126. 

lost  or  barred  by  wife's  release  during  coverture,  127. 

lost  or  barred  by  elopement  and  divorce,  128. 

lost  or  barred  by  loss  of  husband's  seisin,  129. 

lost  or  barred  by  estoppel  in  pais,  130. 

lost  or  barred  by  statute  of  limitations,  131. 

lost  or  barred  by  exercise  of  eminent  domain,  132. 

widow's  quarantine,  133. 

assignment  —  two  modes-,  134. 

assignment  of  common  right,  135. 

assignment  against  common  right,  136. 

by  whom  may  dower  be  assigned,  137. 

remedies  for  recovery  of,  138. 

demand  necessary,  139. 

against  whom  and  where  action  instituted,  140. 

action  abated  by  death  of  widow,  141. 

judgment,  what  it  contains,  142. 

damages,  when  recoverable,  143. 

assignment  after  judgment,  144. 

a  >sigument,  where  two  or  more  widows  claim,  145. 

decree  of  sum  of  money  in  lieu  of,  146. 

barred  by  jointure,  147. 

barred  by  testamentary  provision,  148. 

DURESS, 

effect  of,  or  validity  of  deed,  796. 

EASEMENTS,  597-622. 

denned  and  explained,  597. 
when  merger  takes  effect,  598. 
how  acquired,  599. 
by  express  grant,  600. 
by  implied  grant,  601 . 
equitable  easement,  602. 
implied  from  covenant,  603. 
rights  of  action  in  defence  of,  604. 
lost  or  extinguished,  how,  605. 
kinds  of,  606. 
right  of  way,  607. 
private  way,  608. 
ways  of  necessity,  609. 


754  INDEX. 

EASEMENTS  —  Continued. 

who  must  repair  the  way,  610. 

public  or  highways,  611. 

in  light  and  air,  612. 

in  light  and  air,  how  acquired,  613. 

in  right  of  water,  614. 

percolations  and  swamps,  615. 

in  artificial  water  courses,  616. 

in  water  courses,  generally,  617. 

right  of  lateral  and  subjacent  support,  618. 

implied  grant  of  lateral  supDort  619. 

party  walls,  620. 

separate  ownership  in  building  —  subjacent  support,  621. 

legalized  nuisances,  622. 

ELOPEMENT, 

of  wife,  bar  to  dower,  128 

EMBLEMENTS, 
what  are,  8,  70. 
who  may  claim,  71. 

EMINENT  DOMAIN, 
defined,  753. 
nature  of  title  acquired  by,  753. 

ENCUMBRANCES, 

by  whom  paid  off,  66. 
interest  on,  by  whom  paid,  66. 
if  paid  by  tenant,  what  effect,  66. 

ENTIRETY, 

estates  in,  242-244. 

doctrine  of  survivorship,  242. 

estates  in,  in  a  joint-tenaucy,  243. 

how  affected  by  statutes  in  United  States,  242. 

EQUITABLE  ESTATES, 
what  are,  437-517. 
history  and  origin  of,  438. 
dower  in,  117. 
curtesy  in,  105. 

EQUITY  OF  REDEMPTION, 
defined,  299. 

invariable  incident  to  mortgage,  299,  308. 
how  affected  by  contemporaneous  agreements,  808 
how  affected  by  subsequent  agreements,  309. 

EQUITABLE  MORTGAGE, 
what  is,  287. 


INDEX.  155 


EQUITABLE  MORTGAGES  —  Continued. 
by  deposit  of  title  deeds,  288-291. 
vendor's  lien,  292-294. 
vendee's  lien,  295, 

ESCROW, 

denned  and  explained,  815. 

ESTATE, 

what  is  an,  26. 
kinds  and  classes,  26. 
in  fee  simple,  36-39. 
tail,  44-52. 
for  life,  60-82. 
per  auter  vie,  61. 
joint  estates,  235-265. 
during  coverture,  90-94. 
curtesy,  101-110. 
dower,  115-148. 
homestead,  158-164. 
upon  condition,  271-280. 
upon  limitation,  280. 
equitable,  437-517. 
in  reversion,  385-388. 
in  remainder,  396-434. 
contingent  use,  482. 
springing  use,  483. 
shifting  use,  484. 
executory  devise,  530-546. 
conditional  limitations,  281. 
for  years,  171-201. 
at  will,  212-219. 
at  sufferance,  225-228. 

ESTATE  IN  FEE  SIMPLE,  36-39. 
defined  and  explained,  36. 
words  of  limitation  necessary,  37. 
alienation  of,  38. 
liability  of,  for  debts,  39. 

ESTATES  TAIL,  44-52. 

base  or  qualified  fees,  44. 

fee  conditional  at  common  law,  45. 

estate  tail -explained,  46. 

necessary  words  of  limitation  in,  47. 

classes  of,  48. 

how  barred,  49. 

merger  of,  50. 

after  possibility  of  issue  extinct,  51. 

in  the  United  Stales,  52. 


if  5  6  INDEX. 

ESTATES  FOR  LIEE,  60-82. 
definition  and  classes,  60. 
peculiarities  of  estates  per  auter  vie,  61. 
words  of  limitation  in,  62. 
merger  of,  63. 
alienation  of,  64 . 

tenure  between  tenant  for  life  and  reversioner,  65. 
apportionment   between   life    tenant   and  reversioner  —  of   incum- 
brances, 66. 
same  —  of  rent,  67. 
claim  of  tenant  for  improvements,  68 
estovers,  69. 
emblements,  70. 
who  may  claim  emblements,  71. 
waste,  definition  and  history  of,  72. 
what  acts  constitute  waste,  73.. 
waste,  in  respect  to  trees,  74. 

continued  —  in  respect  to  mineral  and  other  deposits,  75 
continued  —  management  and  culture  of  land,  76. 
continued  —  in  respect  to  buildings,  77. 
continued  —  by  acts  of  strangers,  78. 
continued  —  by  destruction  of  buildings  by  fire,  79. 
exemption  from  liability  for  waste,  80. 
remedies  for  waste,  81. 
property  in  timber  unlawfully  cut  by  life  tenant,  82. 

ESTATES  FOR  YEARS,  171-201. 
history  of,  171. 
definition  of,  172. 
tenure  defined,  173. 
interesse  termini,  174. 
terms  commencing  infuturo,  17">. 
the  rights  of  lessee  for  years,  176. 
how  created,  177. 
form  of  a  lease,  178. 

present  lease  distinguished  from  contract  for  future  one,  179. 
acceptance  of  lease  necessary,  180. 
relation  of  landlord  and  tenant,  181. 
assignment  and  subletting,  182. 
involuntary  alienation,  183. 
disposition  of  terms  after  death  of  tenant,  184. 
covenants  in  a  lease,  in  general,  185. 
covenants,  express  and  implied,  186. 
implied  covenants  for  quiet  enjoyment,  187 
implied  covenant  for  rent,  188. 
implied  covenant  against  waste,  189. 
covenants  running  with  the  land,  190. 


INDEX.  757 

ESTATES  FOR  YEARS— Continued. 
conditions  in  leases,  191. 
rent  reserved,  192. 

rent  reserved  —  condition  of  forfeiture,  193. 
how  relation  of  landlord  and  tenant  may  be  determined,  194. 
what  constitutes  eviction,  195. 
constructive  eviction,  196. 
surrender  and  merger,  197. 
how  surrender  may  be  affected,  198. 
right  of  lessee  to  deny  landlord1  s  title,  199. 
effect  of  disclaimer  of  lessor's  title,  200. 
letting  land  upon  shares,  201. 

ESTATES  AT  WILL  AND  FROM  YEAR  TO  YEAR,  212-219. 
what  are  estates  at  will,  212. 
how  estates  at  will  are  determined,  213. 
estates  at  will  and  from  year  to  year  distinguished,  214. 
what  now  included  under  estates  at  will,  215. 
estates  at  will,  arising  by  implication  of  law,  216. 
qualities  of  tenancies  from  year  to  year,  217. 
what  notice  required  to  determine  tenancy  from  year  to  year,  218. 
how  notice  may  be  waived,  219. 

ESTATES  AT  SUFFERANCE,  225-228. 
what  are,  225. 
incidents  of,  226. 

how  tenancy  at  sufferance  may  be  determined,  227. 
effect  of  forcible  entry,  228. 

ESTATES  UPON  CONDITION,  271-281. 
definition  of,  271. 

words  necessary  to  creation  of,  272. 
conditions  precedent  and  subsequent,  271,  273. 
invalid  conditions  —  impossibility  of  performance,  274. 
invalid  conditions  —  because  of  illegality,  275. 
time  of  performance,  276. 
effect  of  breach  of  condition  upon,  277. 
waiver  of  performance,  278. 
equitable  relief  against  forfeiture,  279. 
distinguished  from  trusts,  280. 

distinguished  from  estates  upoin  limitation  and  conditional  limita- 
tions, 281. 

ESTATES  UPON  LIMITATION,  281. 

ESTOPPEL,  724-631. 
defined,  724. 
in  pais,  725. 

perfection  of  title  by  the  operation  of,  725. 
is  fraud  necessary  to,  726. 


7?3  INDEX. 

ESTOPPEL  —  Continued. 

by  deed,  in  its  relation  to  title  by  adverse  possession,  727,  728. 
effect  of  estoppel  upon  the  title,  729,  730. 
binding  upon  whom,  731. 

ESTOVERS, 

defined  and  explained,  69. 

EVICTION  OF  TENANT, 

actual  and  constructive,  195,  196. 
effect  of,  194. 

EXCEPTION 

and  reservation  distinguished,  843. 

EXCHANGE, 

technical  conveyance  at  common  law,  769. 
rule  as  to  dower  in  technical  cases  of,  145. 

EXECUTION, 

title  acquired  by  sale  under,  757. 
of  mortgages,  302,  303. 
of  deeds,  804-809. 
of  devises,  874-879. 

EXECUTORY  DEVISES,  530-546. 
nature  and  origin  of,  530. 
vested  and  contingent,  531. 
classes  of,  532. 

distinguished  from  devises  in  prcesenti,  533. 
reversion  of  estate  undisposed  of,  what  becomes  of,  534. 
distinguished  from  uses,  535. 
distinguished  from  remainders,  536-540. 
may  be  limitation  after  a  fee,  537. 
limitation  after  estate  tail,  a  remainder  and  not  an  executory  devise, 

538. 
arising  by  lapse  of  prior  limitation,  539. 
remainder  may  be  limited  after,  540. 
indestructibility  of,  541. 
limited  upon  failure  of  issue,  542. 
use  limited  upon  failure  of  issue  in  deed,  543. 
how  affected  by  rule  against  perpetuity,  544. 
rule  against  accumulation  of  profits,  545. 
of  chattel  interests,  546. 

FEE, 

meaning  of  term  under  feudal  system,  21. 
words  of  limitation  in  creation  of  a,  37,  47. 
base  or  qualified,  44,  271-281. 
conditional  at  common  law,  45. 


INDEX.  759 

FEE  SIMPLE,  36-39. 
defined,  36. 

words  of  limitation  in  a,  37. 
alienation  of,  38. 
liability  for  debts,  39. 

FEE  TAIL,  46-52.    See  Estates  Tail. 

FEOFFMENT, 

explained  and  defined,  24,  770. 
Avhen  it  will  operate  tortiously  770. 

FERRIES.    See  Franchises. 

FEUDAL  SYSTEM, 

principles  of  the,  19-26 

what  is  tenure,  19. 

feudal  tenure,  20. 

feud  or  fief,  21. 

subinfeudation,  22. 

the  feudal  manor,  23. 

feoffment  and  livery  of  seisin,  24. 

tenure  in  the  United  States,  25. 

classes  of  estates,  26. 

FIDEI  COMMISSUM, 
resembles  uses,  438. 

FILUM  AQUAE,  687. 

FINE, 

and  common  recoveries,  49. 

FIXTURES,  3-7. 
defined,  3. 
who  may  claim,  4. 

what  constitutes  constructive  annexation,  5, 
between  landlord  and  tenant,  6. 
time  for  removal  of,  7. 

FLOWING  LANDS, 

when  permitted  to  upper  land-owner,  617. 

FORECLOSURE,  358-368. 

FRANCHISES,  633-636. 
defined,  633. 
kinds  of,  634. 

mutual  obligations  arising  out  of,  635. 

conflicting  franchises  —  constitutional  prohibition  against  legislative, 
avoidance  of,  636. 

FRAUDULENT  CONVEYANCES, 
what  are,  802. 


7S0  INDEX. 

FRAUDS,  STATUTE  OF, 
in  respect  to  leases,  178. 
in  respect  to  uses  and  trusts,  507. 
in  respect  to  conveyances  generally,  783. 
does  not  require  a  sealed  instrument,  783. 
in  respect  to  mortgages,  303,  307. 

FREEHOLD, 

defined,  23,  26. 

classes  of,  26. 

distinguished  from  leasehold,  172. 

seisin  applicable  only  to,  24. 

cannot  be  created  to  commence  in  futuro,  386,  396 

descends  to  heir. 

FUTURE  USES,  478-187. 

GIFT, 

originally  a  feoffment  in  tail,  769. 

GRANT,  744-783. 

title  by  public  grant,  744-747. 

title  by  involuntary  alienation,  751-761. 

title  by  public  grant,  768-783. 

GRANT,  TITLE  BY  PUBLIC,  744-74  7. 
of  public  lands,  744. 
forms  of  public,  745. 

relative  value  of  .patent  and  certificate  of  entry,  746. 
pre-emption,  747 

GRANT,  TITLE  BY  DTVOLUNTART,  761-761. 

defined,  751  f 

scope  of  legislative  authority,  752. 

eminent  domain,  753. 

from  persons  under  disability,  754. 

confirming  defective  titles,  755. 

sales  by  administrators  and  executors,  756. 

sales  under  execution,  757. 

sales  by  decree  of  chancery,  758. 

tax-titles,  759. 

validity  of  tax-title,  760. 

judicial  sales  for  delinquent  taxes,  761. 

GRANT,  TITLE  BY  PRIVATE,  768-783. 
defined  and  explained,  768. 

principal  features  and  classes  of  common-law  conveyances.  7(">9. 
feoffment,  770. 
common-law  grant,  771. 
lease,  77l\ 


INDEX.  761 


GRANT,  TITLE  BY  PRIVATE  —  Continued. 
release,  773. 
confirmation,  773. 
surrender,  773. 

conveyances  under  the  Statute  of  Uses,  774-778. 
retrospection,  774. 
covenant  to  stand  seised,  775. 
bargain  and  sale,  776. 

future  estates  of  freehold  in  bargain  and  sale,  777. 
lease  and  release,  778. 

what  conveyances  now  judicially  recognized,  779. 
statutory  forms  of  conveyance,  780. 
quit-claim  deed,  781. 

dual  character  of  common  conveyances,  782. 
is  a  deed  necessary  to  convey  a  freehold,  783. 

GROWING  CROPS, 

when  part  of  the  realty,  2,  799. 

GUARDIANS, 

may  sell  lands  of  ward  upon  order  of  court,  754. 
holding  over  are  not  tenants  at  sufferance,  225. 

HABENDUM, 

its  use  and  necessity  in  deeds,  844. 

HAY-BOTE  OR  HEDGE-BOTE.     See  Estovers. 

HEIR, 

defined,  663. 

apparent  and  presumptive  distinguished,  663. 

apparent's  deed  operates  by  estoppel,  800. 

HEIRS, 

as  a  word  of  limitation,  37,  47. 

HEIRS  OF  THE  BODY, 
who  are,  47. 

HEREDITAMENTS, 
term  defined,  11. 
two  classes  of,  11. 
(see  incorporeal  hereditaments.) 

HIGHWAYS, 

as  a  monument  of  description,  837. 
right  of  the  public  in,  how  acquired,  611. 

HOLDING  OVER, 

by  tenant  makes  him  tenant  at  sufferance,  225. 

by  guardian,  and  trustees  makes  them  trespassers,  225. 


762  INDEX. 

HOLOGRAPHS,  879. 

HOMESTEADS,  THE  LAW  OF,  158-164. 
history  and  origin,  158. 
nature  of  the  estate,  159. 
who  may  claim,  ICO. 
what  may  be  claimed,  161. 
exemption  from  debt,  162. 
how  lost — by  alienation,  163. 
lost  by  abandonment,  164. 

HOUSES, 

generally  part  of  the  land,  2,  799. 
(see  fixtures.) 

HOUSEBOTE.    See  Estovers 

HUSBAND  AND  WIFE, 

when  tenants  by  entirety,  242,  243. 
when  tenants  in  common,  L>44. 
rights  of  property  in  each  other's  lands,  90-164. 
cannot  convey  directly  to  each  other,  may  make  joint  conveyance  of 
wife's  property,  794. 

IMPEACHMENT  FOR  WASTE, 
exemptions  from,  80. 

IMPLIED, 

conditions,  191,  193,  271. 
covenants  in  deeds,  859. 
in  leases,  186-189. 
trusts,  498. 

INCORPOREAL  HEREDITAMENTS,  689-646. 
rights  of  common,  591-593. 
easements,  597-622. 
rents,  641-646. 
franchises,  633-636. 

INCUMRRANCES, 

covenant  against,  852,  853. 

when  tenant  must  pay  off  and  how  payment  apportioned,  66. 

INDENTURE, 

what  is  deed  of,  824. 

INFANT, 

deed  of,  whether  void  or  voidable,  792. 
not  bound  by  estoppel,  731. 
cannot  avoid  deed  during  infancy,  792,  793. 
confirmation  validates  the  deed,  792,793. 


INDEX.  763 

INHERITANCE, 
estates  of,  26. 
words  of,  37,  47. 

INSANE  PERSON, 

deed  of,  whether  void  or  voidable,  792. 

effect  of  disaffirmance  and  ratification,  792, 793. 

INSOLVENT, 

assignee  of,  when  bounded  by  covenants  in  assignor's  lease,  183. 
INSURANCE, 

mortgagor  and  mortgagee's  right  to  effect,  327. 

rules  for  applying  insurance  money,  327. 

double  insurance,  327. 

company's  right  of  subrogation,  327. 

INSTANTANEOUS  SEISIN, 

in  respect  to  attaching  dower  right,  124. 

INTERESSE  TERMINI,  174. 

IRRIGATION, 

right  of  riparian  owners  to  water  for,  614,  617. 

ISLANDS, 

forming,  in  whom  is  right  of  property,  687. 

JOINT  ESTATES,  235-265. 
what  are,  235. 
classes  of,  235. 
joint-tenancy,  236. 
incidents  of  joint-tenancy,  237,  238. 
doctrine  of  survivorship,  how  destroyed,  238. 
tenancy  in  common,  239. 
when  tenancies  in  common,  240. 
tenancy  in  coparcenary,  241. 
estates  in  entirety,  242,  243. 

tenancy  in  common  between  husband  and  wife,  244. 
estates  in  partnership,  245. 
several  interests  of  partners,  246. 
disseisin  by  one  co-tenant,  251. 
adverse  title  acquired  by  one  co-tenant,  252. 
.    alienation  of,  253. 
waste  by  co-tenant,  254. 

liability  of  one  co-tenant  for  rents  and  profits,  255. 
■definition  of  partition,  259. 
voluntary  partition,  260. 
Involuntary  or  compulsory  partition,  261. 
who  can  maintain  action  for  waste,  262. 


764  INDEX. 

JOINT  ESTATES  —  Continued. 
partial  partition,  263. 
manner  of  allotment,  264. 
effect  of  partition,  265. 

JOINT-TENANCY.     See  Joint  Estates. 

JOINTURE, 

explained,  a  bar  to  aower,  147. 

JUDGMENT-LIEN, 

when  takes  precedence  to  mortgage,  339. 
when  created  by  docket  of  judgment,  757. 


LAKES, 

as  monuments  of  description,  836. 

LAND, 

what  is,  2-10. 

what  included  in  conveyance  of,  2,  799,  800. 

never  appurtenant  to  land,  842. 

LANDS, 

tenements  and  hereditaments,  distinguished,  11. 

LAND  WARRANTS, 

to  what  extent  Legal  title,  746. 

LANDLORD  AND  TENANT, 

what  constitutes  relation  of,  181. 
(see  estates  for  years.) 

LEASE, 

form  and  requisites  of,  178,  772. 

distinguished  from  contract  for  future  lease,  179. 

(see  estates  for  years.) 

LEASE  AND  RELEASE, 

defined  and  explained,  778. 

LEGISLATURE, 

may  create  franchises,  633 . 
power  of,  over  franchises,  635,  636. 
validity  of  sales  of  private  property  by,  752. 
exercise  of  eminent  domain  by,  753. 

LEGAL  ESTATES, 

distinguished  from  equitable,  26. 

LESSEE.    See  Estates  for  Years. 

LESSOR.    See  Estates  for  Years. 


INDEX.  765 


LETTING  LAND  UPON  SHARES,  201. 

LICENSE,  651-654. 

defined  and  explained,  651. 
how  and  when  revoked,  652,  653. 
how  created,  654. 

LIEN, 

of  vendor,  292-295. 

of  vendee,  295. 

by  deposit  of  title  deeds,  288-291. 

by  judgment,  when  takes  precedence  to  mortgage,  339. 

when  created  by  docket  of  judgment,  757.  ♦ 

LIFE  ESTATE.     See  Estates  for  Life. 

LIGHT  AND  AIR, 
easement  in,  612. 
how  created,  613. 

LIMITATIONS, 

statute  of,  713-717. 

what  statute  enacts,  713. 

requires  continuous  and  uninterrupted  possession,  714. 

runs  against  whom,  715. 

how  and  when  statute  operates,  716. 

effect  of,  717. 

LINEAL  AND  COLLATERAL  WARRANTY,  857. 

LIVERY  OF  SEISIN,  24. 

LUNATIC,      .    * 

capacity  as  a  grantor,  792,  793. 
capacity  as  a  devisor,  881. 

MACHINERY, 

when  passes  as  realty,  2. 

MAGNA  CHARTA, 

provisions  of,  in  respect  to  alienation,  22. 

MANURE, 

when  part  of  realty,  2 

MAP, 

may  be  made  by  reference  part  of  description,  841. 

MARITAL  RELATION, 

estates  arising  out  of  the,  90-164. 

estate  of  husband  during  coverture,  90-94. 

estate  by  curtesy,  101-110. 

dower,  115-148. 

homestead  estates,  158-164. 


7fi6  INDEX. 

MARRIED  WOMEN, 

have  dower  iu  husband's  estate,  115-148. 
how  far  able  to  convey  legal  estates,  793. 
rights  to  convey  equitable  estates  469. 

MARSHALLING  OF  ASSETS, 

between  successive  mortgages,  376. 

MERGER, 

of  estate  for  life,  63. 

of  estate  for  years,  197. 

of  estate  per  auter  vie,  61. 

of  estate  tail,  49. 

of  mortgage,  321. 

of  equitable  estate,  451,  464. 

MINES, 

included  in  term  land,  2. 

opening  of,  when  waste  by  tenant,  75. 

widow  has  dower  in,  116. 

MONUMENTS, 

element  of  description  of  boundary,  830. 

natural  and  artificial,  831. 

artificial  monuments  in  United  States  surveys,  832. 

non-navigable  streams,  833. 

navigable  streams,  834. 

ponds  and  lakes,  836. 

highways,  837. 

Avails,  trees,  fences,  etc.,  838. 

MORTGAGE,  287-376. 
defined,  287. 
by  deposit  of  title  deeds,  288-291. 

notice  to  subsequent  purchasers,  289. 
their  recognition  iu  this  country,  290. 
foreclosure  of  mortgage  by  deposit  of  title  deeds,  291. 
vendor's  lien,  292-295. 
whom  does  it  bind,  2 : < 2 . 

what  constitutes  notice  of  vendor's  lien,  292. 
lien  how  discharged,  293. 
in  whose  favor  raised,  294. 
vendee's  lien,  295. 

foreclosure  of  vendor's  and  vendee's  liens,  295. 
at  common  law,  296. 
vivum  vadium,  'I'M . 
Welsh  mortgage,  298. 
equity  of  redemption,  299. 
in  equity,  300. 
influence  of  equity  upon  law  in  respect  to  the,  301. 


INDEX.  76? 

MORTGAGE  —  Continued. 
what  constitutes  a,  302. 
execution  of  the  defeasance,  303. 
form  of  defeasance,  304. 

defeasance  distinguished  from  agreements  to  repurchase,  305. 
defeasance  clause  in  equity,  306. 

admissibility  of  parol  evidence  to  convert  deed  into  a,  307. 
how  affected  by  contemporaneous  agreements,  308. 
how  affected  by  subsequent  agreements,  309. 
debt  necessary  to  a  mortgage,  310. 
for  support  of  mortgagee,  311. 
what  may  be  mortgaged,  312. 
mortgagor's  interest,  318. 
mortgagee's  interest,  319. 
may  be  devised,  320. 
merger,  321. 

possession  of  mortgaged  premises,  322. 
special  agreements  in  respect  to  possession,  323 
rents  and  profits,  32-1. 

mortgagee's  liability  for  rents  received,  325. 
tenure  between  mortgagor  and  mortgagee,  326. 
insurauce  of  the  mortgaged  premises,  327. 
assignment,  328. 
common  law  assignment,  329. 
assignment  under  lien  theory,  330. 
,  assignment  of  mortgagor's  interest,  331. 
rights  and  liabilities  of  assignees,  332. 
effect  of  payment  or  tender  of  payment,  333. 
who  may  redeem,  334. 
what  acts  extinguish  the  mortgage,  335. 
effect  of  a  discharge,  336. 
when  payment  will  work  an  assignment,  337. 
registry  of  mortgages,  and  herein  of  priority,  338. 
rule  of  priority  from  registry,  its  force  and  effect,  339 . 
registry  of  assignments  of  moi'tgages  and  equities  of  redemption,  340. 
tacking  of  mortgages,  341. 
priority  in  mortgages  for  future  advances,  342. 
actions  for  waste,  351. 
process  to  redeem,  352. 
accounting  by  the  mortgagee,  353. 
continued  —  what  are  lawful  debits,  354. 
continued  —  what  are  lawful  credits,  355. 
making  rests,  356. 
balance  due,  357. 

foreclosure  —  nature  and  kinds  of,  358. 
continued  —  who  should  be  made  parties,  359,  360. 


768  ixdex. 

MORTGAGE  —  Continued. 

effect  of  decree  in  foreclosure  upon  the  land,  361. 

effect  of  foreclosure  upon  the  debt,  362. 

with  power  of  sale,  363. 

character  of  mortgagee  in  relation  to  the  power,  364. 

purchase  by  mortgagee  at  his  own  sale,  365. 

extinguishment  of  the  power,  366. 

application  of  purchase-money,  367 

deeds  of  trust,  368. 

contribution  to  redeem  —  general  statement,  369. 

contribution  between  mortgagor  and  his  assignee,  370. 

between  assignees  of  mortgagor,  371. 

between  surety  and  mortgagor,  372. 

between  heirs,  widows  and  devisees  of  mortgagor,  373. 

between  mortgaged  property  and  mortgagor's  personal   estate, 
371. 
special  agreements  affecting  the  rights  of  contribution  and  exonera- 
tion, 375. 
marshalling  of  assets  between  successive  mortgages,  376. 

NAKED  POWER, 
what  is,  560. 

NAMES, 

of  parties  to  deed,  essential  for  description,  798. 
when  deed  is  void  for  uncertainty  of,  798 
of  devisees  must  be  plainly  given,  883 

NAVIGABLE  STREAM, 

what  is,  8;>5. 

as  a  monument  of  description,  834. 

NECESSITY, 
way  of,  609. 

NEMO  EST  HiERES  VIVENTIS,  663. 

NON  COMPOS  MENTIS, 

power  to  make  deeds,  792. 
power  to  make  will,  881. 

NON-NAVIGABLE  STREAMS, 

as  a  monument  cf  description,  833. 

NON-USER, 

its  effect  upon  easement,  605. 

NOTICE  TO  QUIT, 

necessary  to  terminate  tenancy  from  year  to  year,  214,  217,  -UV 
length  of  notice  required,  219. 


index.  769 


NOTICE, 

actual  and  constructive,  816-819. 

constructive  from  registry  of  deed,  810-818. 

what  actual  notice  puts  purchaser  upon  inquiry,  819. 

OBSTRUCTION, 

of  water  course,  how  far  lawful,  614-617. 

right  of  water,  614. 

of  percolations  and  swamps,  615. 

of  artificial  water  courses,  616. 

of  water  courses  generally,  617. 

OCCUPANCY,  TITLE  BY,  681-683. 
defined  and  explained,  681. 
in  estates  per  auter  vie,  683. 
condition  of  public  lands  in  United  States,  682. 

OUSTER, 

of  tenant,  effect  upon  covenant  for  rent,  194-196. 

OUTSTANDING  TERM, 

to  attend  inheritance,  197. 

OWELTY  OF  PARTITION,  264. 

OWNERSHIP, 

double,  in  lands,  10. 

PAROL  EVIDENCE, 

admissible  to  show  a  deed  to  be  a  mortgage,  307. 
may  establish  amount  of  consideration  of  a  deed,  801. 
may  prove  location  of  monuments  in  a  deed,  828,  832. 

PAROL  LEASES, 

how  far  binding,  177,  216. 

PAROL  LICENSE, 

nature  of  interest  created  by,  651. 
how  far  and  when  revocable,  652,  653. 

PARTICULAR  ESTATE, 
what  is  a,  396 . 

PARTIES, 

to  deeds,  who  are  competent,  791,  792,  794, 796. 
to  foreclosure  of  mortgage,  359,  360. 
redemption  of  mortgage,  334,  352. 

PARTITION,  259-265. 

defined  and  explained,  259. 
voluntary  partition,  260. 

49 


770  INDEX. 

PARTITION—  Continued. 

involuntary  or  compulsory  partition,  261. 
who  can  maintain  action  for,  262. 
partial  partition,  263. 
mode  of  allotment  in,  264. 
effect  of,  265. 

PARTNERSHIP, 

estate  in,  245. 

several  interests  of  partners  in  estate  in,  246. 

PARTY  WALLS, 

as  an  easement,  620. 

PATENT  OF  LAND, 

from  the  State  or  United  States,  745. 

its  value  compared  with  certificate  of  entry,  746. 

PAYMENT, 

of  mortgage,  effect  of,  333,  335. 

whon  it  works  an  assignment,  337. 

PERCOLATIONS, 

rights  in  and  to,  615. 

PER  MY  ET  PER  TOUT,  238. 

PERPETUITY, 

rule  against,  543, 

in  its  relation  to  powers,  575. 
does  not  apply  to  remainders,  417. 

PERSONAL  PROPERTY, 

when  it  becomes  part  of  realty,  2-7. 

estates  for  years  are,  171,  172. 

when  liable  to  contribution  towards  payment  of  mortgage,  374. 

PONDS, 

as  monuments  of  description,  836. 

POSSESSION, 

constructive  notice  of  deed,  819. 

title  by  adverse,  692-704. 

effect  of  naked  possession,  692. 

seisin  and  disseisin  explained,  698. 

disseisin  and  dispossession  distinguished,  694. 

actual  or  constructive  possession  necessary,  695. 

what  acts  constitute  actual  possession,  visible  or  notorious,  696,  697. 

must  be  distinct  and  exclusive,  698. 

must  be  hostile  and  adverse,  699. 

when  adverse  after  lawful  entry,  700. 

disseisor's  power  to  alien,  701 . 


INDEX.  771 


POSSESSION  —  Continued. 

title  by  adverse,  how  defeated,  703. 

how  made  absolute,  704. 
betterments,  702. 

POSSIBILITY  OF  ISSUE  EXTINCT, 
estate  tail  after,  51. 

POSTHUMOUS  CHILDREN, 
right  to  inherit,  673. 
how  affected  by  will  of  parent,  673. 

POWERS,  558-577. 

of  the  nature  of  powers  in  general,  558. 
classes  of,  558. 

POWERS  OF  APPOINTMENT,  559-577.    . 
kinds  of,  560. 

suspension  or  destruction  of,  561. 
how  created,  562. 
distinguished  from  estates,  563. 
enlarging  estate  to  which  they  are  coupled,  564. 
who  may  be  donee,  565. 
executed  by  whom,  566. 
mode  of  execution,  567. 
who  may  be  appointees,  568. 
/    execution  by  implication,  569. 
excessive  execution,  570. 
successive  execution,  571. 
revocation  of  appointment,  572. 
cy  pres  doctrine  applied  to,  573. 
detective  executions,  573. 
non-execution,  574. 

rules  against  perpetuity  applied  to,  575. 
rights  of  donee's  creditors  in  the  power,  576. 
rights  of  creditors  of  beneficiaries,  577. 

POWERS  OF  ATTORNEY, 
to  execute  deed,  805. 
by  married  women,  806. 

POWER  OF  SALE, 

in  a  mortgage,  363-368. 

explained,  363. 
character  of  mortgagee  in  relation  to,  364. 
when  extinguished,  366. 
purchase  by  mortgagee  at  sale  under,  365. 
application  of  purchase -money,  367. 
in  deeds  of  trust,  368. 

PRE-EMPTION,  747. 


772  INDEX. 

PREMISES  OF  A  DEED,  826-843. 
what  contained  in,  826. 
description  of  land,  general  statements,  827 
contemporaneous  exposition,  828. 
falsa  demonstratio  non  nocet,  829. 
elements  of  description,  830. 
monuments,  natural  and  artificial,  831. 
artificial  monuments  in  United  States  surveys,  832. 
non-navigable  streams,  833. 
navigable  streams,  834. 
what  is  a  navigable  stream,  835. 
ponds  and  lakes,  836. 
highways,  836. 
walls,  fence-,  trees,  etc.,  838. 
courses  and  distances,  839. 
quantity  of  land,  840. 

reference  to  other  deeds,  maps,  etc.,  for  description,  841. 
appurtenances,  842. 
exception  and  reservation,  843. 

PRESCRIPTION, 

applies  only  to  incorporeal  hereditaments,  599. 
distinguished  from  limitation,  599. 

PRIMOGENITURE,  666. 

PRIORITY, 

in  extraordinary  use  of  water  course,  f>l 7. 
of  title  l>y  registration  of  deeds,  816-818. 
of  mortgage  from  recording,  338,  359. 
in  registry  of  assignments  of  mortgage,  340. 
in  mortgages  for  future  advances,  342. 

PRIVATE  GRANT,  TITLE  BY,  768. 
defined  and  explained,  768. 

principal  features  and  classes  of  common-law  conveyances,  769. 
feoffment,  770. 
common-law  grant,  771. 
lease,  772. 
release,  773. 
confirmation.  773. 
surrender,  773. 

conveyances  under  statute  of  uses,  774-77.*. 
retrospection,  774. 
covenant  to  stand  seised,  775. 
bargain  aud  sale,  776. 

future  estates  of  freehold  in  bargain  and  sale.  777. 
lease  and  release.  778. 
what  conveyances  now  judicially  recognized,  779. 


INDEX.  773 

PRIVATE  GRANT,  TITLE  BY—  Continued. 
statutory  forms  of  conveyances,  780. 
quit-claim  deed,  781. 

dual  character  of  common  conveyances,  782. 
is  a  deed  necessary  to  convey  freeholds,  783. 

PRIVITY, 

of  contract  between  lessor  and  lessee,  182. 

of  estate  between  reversioner  and  particular  tenant,  181,  199. 

PROFITS  A  PRENDRE, 

rights  of  common  appurtenant  and  in  gross,  591,  592. 

PROPERTY, 

divided  into  real  and  personal,  1. 

PUBLIC, 

rights  of,  in  highways  acquired  by  custom,  611. 

PUBLIC  GRANT,  TITLE  BY,  744-747. 
of  public  lands,  744. 
forms  of  public  grant,  745. 

relative  value  of  patent  and  certificate  of  entry,  746. 
pre-emption,  747. 

PUBLIC  LANDS, 

in  United  States,  682.     See  Public  Grant. 

PURCHASE, 

what  is  title  by,  659 

QUALIFIED  FEE, 

what  is,  44,  271-281. 

QUANTITY, 

of  land,  as  an  element  of  description,  840. 

QUARANTINE, 

widow's  right  of,  133. 

QUIA  EMPTORES, 

statute  of,  granted  right  of  alienation  of  freeholds,  22,  38. 
forbids  restraint  of  alienation  of  fees,  275. 

RAILROAD, 

rolling  stock  of,  whether  real  estate,  2. 
franchise  of.    See  Franchises. 

RATTFICATTON 

of  deed  by  infant  or  insane  person,  793. 

REAL  ESTATE 

distinguished  from  real  property,  171. 


7  74  INDEX. 

REAL  PROPERTY, 
defined, 1. 
what  included  in,  2. 
fixtures  as  a  part  of,  3-7. 
emblements,  8,  70,  71. 
trees,  a  part  of,  9. 
double  ownership  in,  10. 
includes  lands,  tenements,  and  hereditaments,  11. 

RECEIVER, 

to  mortgaged  property,  when  appointed,  324,  n. 
to  life  estate  when  appointed,  66,  n. 

RECITALS, 

how  far  estoppel  arise  from,  7l'7. 

RECORD.     See  Registration. 

RECOVERY, 

as  a  mode  of  conveying  lands,  49. 

REDEMPTION, 

equity  of.     See  Equity  of  Redemption. 
right  of.    See  Mortgages. 

REFORMATION  OF  DEEDS,  828. 

REGISTRATION  OF  DEEDS,  816-818. 

constructive  notice,  817. 

rule  of  priority  from,  818. 
of  mortgages,  S38,  889,  342. 
of  assignments  of  mortgage,  340 

RELEASE, 

common-law  conveyance,  77.".. 
Lease  and,  778. 

REMAINDERS,  896-434. 

nature  and  definition  of,  396. 

kinds  of,  307,  401. 

successive  remainders,  308. 

disposition  of  vested,  899. 

relation  of  tenant  and  remainderman,  400. 

vested  and  contingent,  further  distinguished,  401. 

uncertainty  of  enjoyment,  401. 

to  a  class,  402. 

after  happening  of  contingency,  40;'>. 

cross  remainders,  404. 

nature  and  origin  of  contingent  remainder,  411. 

classes  of  contingent  remainders,  4 1  L*. 

vested  remainder  after  contingent]  413,  414. 

alternate  remainders  in  fee,  415. 


INDEX.  775 


REMAINDERS  —  Continued. 

restrictions  upon  natura  of  contingency — legality,  416. 

same  —  remoteness,  417. 
contingency  must  not  abridge  particular  estate,  418. 
how  contingent  remainder  may  be  defeated,  419. 
defeated  by  disseisin  of  particular  tenant,  420. 
defeated  by  merger  of  particular  estate,  420. 
defeated  by  feoffment  by  tenant,  422. 
defeated  by  entry  for  condition  broken,  423. 
trustees  to  preserve,  424. 

origin  and  nature  of  rule  in  Shelley's  case,  433. 
requisites  of  the  rule,  434. 

KENT, 

covenant  of.     See  Estates  for  Years. 

RENTS,  641-646. 
defined,  741. 
service,  642. 
charge  and  seek,  643. 
fee-farm  rent,  643. 
how  created,  644. 

how  extinguished  or  apportioned,  645. 
remedies  for  recovery  of,  646. 

REPAIRS, 

liability  for,  in  estates  for  life,  77. 
in  estates  for  years,  77,  189. 
in  mortgaged  property,  351,  355. 
in  double  ownership  of  house,  621. 

REPURCHASE, 

right  to,  distinguished  from  mortgagee,  305. 

RESERVATION, 

distinguished  from  exception,  843. 

RESULTING  TRUSTS,  499,  500. 

RFSULTING  USES,  443. 

REVERSION,  385-389. 

denned  and  explained,  385. 
assignment  and  devise  of,  386. 
descendible  to  whom,  387. 
dower  and  curtesy  in,  388. 
rights  and  powers  incident  to,  389. 

REVOCATION 

of  appointment  under  a  power,  572. 

of  a  will  —  general  statement,  886. 

by  destruction  of  will,  887. 


776  INDEX. 

REVOCATION;—  Continued. 

by  marriage  and  birth  of  issue,  888. 

by  alteration  or  exchange  of  property,  889. 

by  subsequent  will  or  codicil,  890. 

by  happening  of  expressed  contingency  891. 

RIPARIAN  PROPRIETORS, 

right  to  alluvion  and  accretion,  686,  687. 
right  to  use  of  water,  614-617. 
boundary  of  land  of,  833-836. 

RIVERS, 

what  are  navigable,  835. 

as  boundaries  to  land,  833,  834. 

title  to  islands  forming  in,  687. 

ROLLING  STOCK 

of  railroads,  whether  real  estate,  2. 

RULE  IN  SHELLEY'S  CASE, 
nature  and  origin  of,  433. 
requisites  of  the  rule,  434. 

SALE  OF  LAND 

by  legislative  acts  under  eminent  domain,  753. 

of  persons  under  disability,  754. 
by  administrators  and  executors,  756. 
under  execution,  757. 
for  delinquent  taxes.  759-761. 
by  decree  of  chancery,  758. 

SCINTILLA  JURIS,  480,  481. 

SEAL, 

necessary  to  a  deed,  806. 

not  necessary  to  will,  875. 

not  necessary  to  a  leasehold,  177. 

SEALED  INSTRUMENT, 

when  necessary  to  convey  freehold,  783. 

SEISIN, 

what  is,  24,  396,  397,  400,  770. 
and  disseisin  explained,  693. 

SERVIENT  ESTATE,  597. 

SEVERALTY, 

estates  in,  26,  235. 

SHARES, 

letting  land  upon,  201. 


INDEX.  777 

SHELLEY'S  CASE, 
rule  in,  433,  434. 

SIGNING, 

essential  to  deed,  807. 
essential  to  will,  876. 

SOCAGE  TENURE,  23. 

SPRINGS  OF  WATER, 
rights  in  and  to,  G15. 

STIRPES, 

inheritance  per,  6G6,  669. 

STREET 

or  highway,  as  a  boundary,  837. 

STREAMS, 

what  are  navigable,  835. 
as  boundaries,  832f  834. 

SUBINFEUDATION,  22. 

SUBLETTING, 

distinguished  from  assignment,  182. 

SUBPOENA,  WRIT  OF, 
origin  of,  440. 

SUBROGATION 

of  insurance  company  to  mortgagee,  327. 

of  mortgagee  to  mortgagor's  rights  against  assignee  of  mortgagor, 
.332. 

SUCCESSORS, 

a  word  of   limitation  in  conveyance  to  corporations,  when  neces- 
sary, 37. 
in  privity,  acquire  title  by  adverse  possession,  701. 

SUFFERANCE,  TENANCY  AT,  225-228. 
defined  and  explained,  225. 
incidents  of  the  tenancy,  226. 
how  deteamined,  227. 
effect  of  forcible  entry,  228. 

SUPPORT, 

lateral  and  subjacent,  618. 

SURRENDER, 

a  common  law  conveyance,  773. 

SURETY, 

when  subrogated  to  rights  of  mortgagee,  372. 


778  INDEX. 

SURVIVORSHIP,  RIGHT  OF  . 
in  esates  in  entirety,  242,  243. 
in  joint-tancies,  237,  238. 

TABLES  OF  CHANCES  OF  LIFE,  66,  146. 

TACKING  OF  MORTGAGES,  341. 

TAIL,  ESTATES,  44-52.     See  Estates  Tail. 

TAX-TITLE,  759. 
its  validity,  760. 
judicial  sales  for  delinquent  taxes,  761. 

TENANCY  IN  COMMON.     See  Joint  Estates. 

TENANCY  AT  SUFFERANCE,  225-228. 
defined  and  explained,  225. 
incidents  of,  226. 
how  determined,  227. 
effect  of  forcible  entry,  428. 

TENANCY  IN  ENTIRETY.     See  Joint  Estates. 

TENANCY  IN  PARTNERSHIP.     See  Joint  Estates. 

TENANCY  AT  WILL  AND  FROM  YEAR  TO  YEAR,  212-219. 

what  is  a  tenancy  at  will,  212. 

how  is  tenancy  at  will  determined,  213. 

tenancy  at  will  and  from  year  to  year  distinguished,  214. 

what  now  included  under  tenancies  at  will,  215. 

tenancy  at  will  arising  by  implication  of  law,  216. 

qualities  of  tenancies  from  year  to  year,  217. 

what  notice  required  to  determine  tenancy  from  year  to  year,  218. 

how  notice  may  be  waived,  219. 

TENANCY  FOR  YEARS,  171-201.     See  Estates  for  Years. 

TENDER, 

of  mortgage  debt,  effect  upon  mortgagee,  333. 

TENEMENTS, 

meaning  of  term,  11. 

TENENDUM, 

a  component  part  of  deed,  825,  844. 

TENURE, 

what  is,  19. 

under  the  feudal  system,  20. 

in  the  United  States,  25. 

between  landlord  ami  tenant,  173. 

between  tenant  of  particular  estate  and  reversioner,  225-389. 

between  mortgagor  and  mortgagee,  326. 

between  remainderman  and  particular  tenant,  400. 


INDEX.  779 

TERMS  FOR  YEARS.    See  Estates  for  Years. 

TESTAMENTARY  PROVISION, 
in  lieu  of  dower,  148. 

THREAD  OF  THE  STREAM,  687.     See  FiLUM  Aqujc. 

TIDE-WATER, 

boundary  line  iu,  834,  836 

TITLE, 

general  classification,  659,  660. 
by  purchase  and  by  descent,  659. 
original  and  derivative,  660. 

TITLE  BY  ACCRETION,  685-687. 
denned  and  explained,  685. 
alluvion,  686. 
filum  aquae,  687. 

TITLF/BY  ADVERSE  POSSESSION,  692-704. 
effect  of  naked  possession,  692. 
seisin  and  disseisin  explained,  693. 
disseisin  and  dispossession  distinguished,  694. 
actual  or  constructive  possession.  695. 
what  constitutes  actual  possession  —  must  be  visible  or  notorious, 

696,  697. 
must  be  distinct  and  exclusive,  698. 

hostile  and  adverse,  699. 
when  lawful  entry  is  converted  into  adverse  possession,  700. 
disseisor's  power  to  alien,  701. 
when  and  how  defeated,  703. 
when  and  how  made  absolute,  704. 
betterments,  702. 

TITLE  BY  DESCENT,  663-675. 
denned  and  explained,  663. 
what  law  governs,  664. 
consanguinity  and  affinity,  665. 
lineal  heirs,  668. 

how  degree  of  collateral  relationship  is  computed,  669. 
ancestral  property,  670. 
kindred  of  the  whole  and  half  blood,  671. 
advancement — hotchpot,  772. 
posthumous  children,  673. 
illegitimate  children,  674. 
alienage,  as  a  bar  to  inheritance,  675. 

TITLE  BY  DEVISE,  872-891. 

definition  and  historical  outline,  872. 
by  what  law  governed,  873. 


780  INDEX. 

TITLE  BY  DEVISE  —  Continued. 
requisites  of  a  valid  will,  874. 
a  sufficient  writing,  875. 
what  signing  is  necessary,  876. 
proper  attestation,  877. 
who  are  competent  witnesses,  878. 
who  may  prepare  the  will  —  holographs,  879. 
what  property  may  be  devised,  880. 
a  competent  testator,  881. 

who  may  be  devisees  —  what  assent  necessary,  882. 
devise  and  devisee  clearly  defined  —  parol  evidence,  883. 
devises  to  charitable  uses,  884. 
lapsed  devises,  885. 
revocation  of  will,  88G. 

by  destruction,  887. 

by  marriage  and  birth  <>f  issue,  888. 

by  alteration  or  exchange  of  property,  889. 

by  subsequent  will  or  codicil,  890. 
probate  of  will,  891. 

TITLE  BY  EXECUTION,  757. 

TITLE  BY  GRANT,  744-783. 

title  by  public  grant,  744-747. 
title  by  ii. voluntary  grant,  751-761, 
title  by  private  grant,  768-783. 

TITLE  BY  INVOLUNTARY  GRANT,  751-761. 
defined  and  explained,  751. 
scope  of  legislative  authority,  752. 
eminent  domain,  753. 
from  persons  under  disability,  754. 
confirming  defective  titles,  955. 
sales  by  administrators  and  executors,  756. 
sales  under  execution,  757. 
sales  by  decree  of  chancery,  758. 
tax  titles,  759. 
validity  of  tax  title,  760. 
judicial  sales  for  delinquent  taxes,  761. 

TITLE  BY  PRIVATE  GRANT,  768-783. 
defined  and  explained,  768. 

principal  features  and  classes  of  common  law  conveyances,  769. 
feoffment,  770. 
common  law  grant,  771. 
lease,  772. 
release,  773. 
confirmation,  77: 
surrender,  773. 


INDEX.  781 


TITLE  BY  PRIVATE  GRANT  —  Continued. 
conveyances  under  statute  of  uses,  774-778. 
retrospection,  774. 
covenant  to  stand  seised,  775. 
bargain  and  sale,  776. 

future  estates  of  freehold  in  bargain  and  sale,  777. 
lease  and  release,  778. 

what  oonveyances  now  judicially  recognized,  779. 
statutory  forms  of  conveyance,  780. 
quit-claim  deed,  781. 

dual  character  of  common  conveyances,  782. 
is  a  deed  necessary  to  convey  a  freehold,  783. 

TITLE  BY  PUBLIC  GRANT,  744-747. 
of  public  lands,  744. 
forms  of  public  grant,  745. 

relative  value  of  patent  and  certificate  of  entry,  746. 
pre-emption,  747. 

TITLE  BY  OCCUPANCY,  681-683. 
defined  and  explained,  681. 
condition  of  public  lands  in  United  States,  682. 
in  estates  per  auter  vie,  383. 

TITLE  BY  ORIGINAL  ACQUISITION,  681-741. 
title  by  occupancy,  681-683. 
title  by  accretion,  685-687. 
title  by  adverse  possession,  692-704. 
statute  of  limitations,  713-717. 
estoppel,  724-731. 
abandonment,  739-741. 

TREES, 

a  part  of  land,  2,  9. 

in  whom  is  title  to,  when  on  boundary-line,  9. 

rights  of  adjoining  owners  therein,  9. 

TRUSTS.     See  Uses  and  Trusts,  493-517. 
defined  and  explained,  493. 
active  and  passive,  494. 
executed  and  executory,  495. 
express,  496. 

implied,  resulting  and  constructive,  497. 
implied,  498. 

resulting,  in  general,  499. 
resulting  from  payment  of  consideration,  500. 
constructive,  501. 
interest  of  cestui  que  trust,  502. 
liability  for  debts  of  cestui  que  trust,  503. 
words  of  limitation,  504. 


782  INDEX. 

TRUSTS  —  Continued. 

remainders  in,  —  their  destructibility,  505. 

how  created  and  transferred,  506. 

statute  of  frauds  in  relation  to,  507. 

how  affected  by  want  of  a  trustee,  508. 

removal  of  trustees,  509. 

refusal  of  trustee  to  serve,  510. 

survivorship  in  joint  trustees,  511. 

merger  of  interests,  512. 

rights  and  powers  of  trustees,  513. 

powers  and  duties  of  cestuis  que  trust,  514. 

alienation  of  trust  estate,  515. 

liability  of  third  persons  for  performance  of  trust,  516. 

compensation  of  trustee,  517. 

UNDERLETTING, 

distinguished  from  assignment,  182. 
(see  subletting.) 

USER, 

a  mode  of  acquiring  an  easement,  599. 
(see  prescription.) 

USES  AND  TRUSTS, 

I.  Uses  before  the  statute  of  uses,  439-451. 

pre-statcment,  437. 

origin  and  history  of  uses,  438. 

use  defined,  439. 

enforcement  of  the  use,  440. 

distinction  between  uses  and  trusts,  441. 

how  uses  may  be  created,  442. 

same  —  resulting  use,  443. 

same  —  by  simple  declarations,  444. 

who  might  be  feoffees  to  use  and  cestuis  que  use,  445. 

incidents  of  uses,  446. 

what  might  be  conveyed  to  uses,  447. 

alienation  of  uses,  448. 

estates  capable  of  being  created  in  uses,  449. 

disposition  of  uses  by  will,  450. 

how  uses  may  be  lost  or  defeated,  45 1 . 

II.  Uses  under  the  statute  of  uses,  459-470. 
history  of  the  statute  of  uses,  459. 
when  statute  will  operate,  460. 

a  person  seised  to  use  and  in  esst ,  461, 
freehold  necessary,  462. 
use  upon  a  use,  463. 


INDEX.  783 

USES  AND  TRUSTS  —  Continued. 

feoffee  and  cestui  que  use,  same  person,  464. 

a  use  in  esse,  465. 

cestui  que  use  in  esse,  466. 

words  of  creation  and  limitation,  467. 

active  and  passive  uses  and  trusts,  468. 

uses  to  married  women,  4G9. 

cases  in  which  the  statute  will  operate,  470. 
HI.  Contingent,  springing  and  shifting  uses,  478-487. 

future  uses,  478. 

contingent  future  uses,  how  supported,  479. 

importance  of  the  question,  480. 

solution  of  the  question,  481. 

contingent  uses,  482. 

springing  uses,  483. 

shifting  uses,  484. 

future  vses  in  chattel  interests,  485. 

shifting  and  springing  uses,  how  defeated,  486. 

incidents  of  springing  and  shifting  uses,  487. 
IV.  Trusts,  493-517. 

defined  and  explained,  493. 

active  and  passive,  494. 

evecuted  and  executory,  495. 

express,  496. 

implied,  resnlting  and  constructive,  497. 

implied,  498. 

resulting,  in  general,  499. 

resulting  from  payment  of  consideration,  500. 

constructive,  501. 

interest  of  cestui  que  trust,  502. 

liability  for  debts  of  cestui  que  trust,  503 

words  of  limitation,  504. 

remainders  in,  —  their  destructibility,  505. 

how  created  and  transferred,  506. 

statute  of  frauds  in  relation  to,  507. 

how  affected  by  want  of  a  trustee,  508. 

removal  of  trustees,  509. 

refusal  of  trustee  to  serve,  510. 

survivorship  in  joint  trustees,  511. 

merger  of  interests,  512. 

rights  and  powers  of  trustees,  513. 

rights  and  duties  of  cestuis  que  trust,  514. 

alienation  of  trust  estate,  515. 

liability  of  third  persons  for  performance  of  trust,  516. 

compensation  of  trustee,  517. 


784  INDEX. 

VENDEE, 

when  occupying  land  under  contract  of  sale,  is  tenant  at  will,  216 . 

VENDOR'S  LIEN,  292-295. 

VENTRE  SA  MERE, 

child  in,  can  inherit,  673. 

VESTED  ESTATFS,  26. 

VILLEINS,  23. 

VOLUNTARY  CONVEYANCES,  802. 

WAIVER, 

of  notice  by  tenant  from  year  to  year,  219. 

WARRANTY, 

covenant  of,  855,  856. 

the  feudal,  857. 

special  covenants  of,  858. 

implied,  859.  • 

actions  on  covenants  of,  860,  841. 

runs  with  the  laud,  862. 

WASTE, 

definition  and  history  of,  72 

what  acts  coustitute,  73. 

in  respect  to  trees,  74. 

in  respect  to  mineral  and  other  deposits,  75. 

in  management  and  culture  of  land,  76. 

in  respect  to  buildings,  77. 

by  acts  of  strangers,  78. 

by  destruction  of  buildings  by  fire,  79 

exemption  from  liability  for,  80. 

remedies  for,  81 . 

between  mortgagor  and  mortgagee,  351. 

WATER  COURSES, 

artificial  and  natural,  rights  in,  616,  617. 

WATER, 

easements  in  the  use  of,  615. 
what  right  of  property  in,  2. 

WAY, 

right  of,  607. 

private,  608. 

of  necessity,  609. 

who  must  repair  the,  610. 

public  or  high,  611. 


INDEX.  785 


WIFE'S  SEPARATE  ESTATE,  92,  469. 

(see  estates  arising  out  of  marital  relation.) 

WILD  LANDS, 
dower  in,  116. 

WILLS.    See  Devise,  or  Title  by  Devise.    872-892. 

WITNESSES, 
to  deeds,  8(t9. 
to  wills,  877,  878. 

YEAR  «T0  YEAR, 

tenancy  from,  212-219. 

See  Estates  at  Wiix  and  From  Year  to  Year. 

50 


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